We are wading now into levels of irony not previously seen.
Is it possible, after fifty-plus years, it will be Democrats who put the final nails in the conservative fantasy of a Roe v. Wade coffin?
We are at the crescendo of the long-game, the culmination of a decades-long plan by conservative radicals to stack the Supreme Court with far-right activist judges. Yet, as they stand on the precipice of perhaps their greatest victory, they may be forced to turn to Democrats to get them over the line.
A few days ago, President Trump nominated Brett Kavanaugh to fill the Supreme Court opening left by Anthony Kennedy’s retirement. This appointment by the President, whomever it ends up being, will ensure a 5-4 conservative majority for the foreseeable future. How radical that majority ends up being will depend largely on how radical this eventual appointment is.
Kavanaugh, the son of a lobbyist, has been a reliable foot-soldier for the conservative cause throughout his career – ruling with business over workers, over consumers, over the environment. Though, it might be fair to say that on the level Kavanaugh is on, judges from both parties tend to be reliable in this way.
But Kavanaugh also represents something of a golden generation which far-right conservatives set about creating decades ago. Radicals in the Justice Department and elsewhere targeted young, conservative judges and led them through a labyrinth of clerkships and appointments, all the while, and this is the most important part, making sure they didn’t say anything on the record which might be used against them at a future confirmation hearing. Nothing too radical like say… abortion is BS, I would overturn Roe v. Wade.
That Kavanaugh thinks that way is not really a great mystery. He is supported by and tied to the Federalist Society, as are the other four conservative Justices currently in the Supreme Court, an institution committed to overturning Roe v. Wade. Just last year, Kavanaugh gave a speech to the American Enterprise Institute, “praising William Rehnquist’s dissent in Roe v. Wade and Rehnquist’s insistence that the Constitution does not imply a right to abortion.”
The only question is whether he has kept his radicalism sufficiently off the record to allow him to slip through the vanguard of Democrats and moderate Republicans at confirmation.
Which is exactly where things get interesting…
In order to get confirmation in the Senate, Kavanaugh requires no less than 50 (of 100) votes, with vice-President Mike Pence able to break a tie. There are currently 51 Republican senators, theoretically enough to avoid a problem.
However, there are murmurs that two GOP senators – Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom are pro-choice and supported Obamacare – will not vote for a candidate who will overturn Roe v. Wade.
Should they defect, 49 votes will not be enough for Kavanaugh.
However, there are a handful of Democratic senators up for re-election this year in “red” states that Trump won big in 2016 – People like Heidi Heitkamp (North Dakota), Joe Manchin (West Virginia), Claire McCaskill (Missouri), and Joe Donnelly (Indiana). It is possible that one or more of these senators would try to score points with voters in their home states by supporting the President’s nomination.
Envision the scenario: Collins and Murkowski defect, but Heidi Heitkamp and Joe Manchin ride to the rescue for Republicans, more concerned with saving their own skin than whom they are confirming. Justice Kavanaugh strolls into the Supreme Court – the key and deciding votes provided by Democrats – which immediately sets about overturning Roe v. Wade.
Is it possible that after parading Roe v. Wade around as one of their favorite boogeymen for decades – as in, vote for us or … you know … abortion! – it will be Democrats who, at the moment of truth, strike the decisive blow against?
We already know Democrats share an ideological model with Republicans on corporations and big banks, the military and the militarization of police, on the 99% and the 1%; which is why the graphs on these issues look the same regardless of which party controls the House or forms the administration.
I guess the question would be: if Democrats aren’t even defending Roe v. Wade… what are they defending?
I’m not saying that I’m cheering for the next incarnation of the Supreme Court to be one that removes people’s rights. That would be awful. I hope Democrats coalesce and Republicans defect, Kavanaugh is rejected, and somebody who better represents the position of 2/3 of the country on abortion is nominated.
I’m just saying, if Kavanaugh’s appointment has to happen, for it to be an “Emperor has no clothes” moment for the Democrats would be a small salve.