Last night, President Trump nominated Brett Kavanaugh to replace Justice Kennedy on the Supreme Court. Very little about this was surprising. Kavanaugh is exactly the sort of judge everyone assumed would be nominated – endorsed by rightwing organizations like the Federalist Society and the Heritage Foundation, and possibly even picked by Justice Kennedy himself. I was curious to see how Senators reacted to this announcement. The Democrats have 49 seats in the Senate (counting Democratic-leaning independents), and very little power to stop the nomination. The issue for me is not whether the Democrats will show sufficient unity to block Kavanaugh – that doesn’t seem possible, even if they were united. Rather, my question was, are we in a political crisis? That is, how do relevant political elites construct the current moment? Is it exceptional? If so, in what ways? Or is it business as usual?
To get a quick cut at answering this question, I tried to find the first public statement that each Senator made about the nomination. Here’s a spreadsheet with what I found – I probably missed one or two if they came in late and weren’t posted on Twitter. The typical statement was a few sentences in a screenshot on Twitter, or a brief tweet linking to a couple paragraphs on a Senate website. Almost every Senator made some kind of statement.
The short answer to my opening question is that every single Republican approached this nomination as business as usual. Democrats were mixed, but only a handful expressed very strong narratives of crisis. A few Republicans did call out Democrats for “knee-jerk” reactions to Kavanaugh and my favorite tweet came from Nebraska Senator Ben Sasse:
“Sadly the #Resistance is going to try to bork him by portraying him as a cross between Lex Luthor and Darth Vader. This isn’t the apocalypse – this is an opportunity to thoroughly review Kavanaugh’s record, debate this seriously, and celebrate our system of checks, balances, and limited government.” [Emphasis added]
Despite Sasse’s worries – and those of a few other Republicans – very few Democratic Senators invoked apocalyptic language. By my loose count, 20 out of 49 Democratic Senators promised to vote no on Kavanaugh. The other 29 mostly followed a formula of expressing concerns about particular issues (reproductive rights, LGBT rights, workers’ rights) and promising a rigorous vetting process. For example, Ohio Senator Sherrod Brown tweeted:
“Serious concerns” has become almost a punchline over the past two years. Sometimes, the joke is about how Republicans express serious concerns about some action of Trump’s, but then fail to exercise any meaningful oversight of his decisions. In this case, the serious concerns are those of Democrats concerned with traditional issue areas on which Kavanaugh’s vote could be decisive. But, after expressing these concerns, most Democrats reiterate a kind of “normal order” – a rigorous vetting process and a vote in the Senate. In other words, business as usual.
Of those Democrats who promised to vote no, one common justification was that Kavanaugh was pre-selected by two rightwing organizations, the Heritage Foundation and the Federalist Society. For example, New York Senator Chuck Schumer wrote in his press release:
President Trump repeatedly promised to nominate justices to the bench who are hostile to Roe v. Wade, and who will undermine our health care laws. He has picked Judge Kavanaugh from a list of 25 people who were vetted and approved by the Federalist Society and Heritage Foundation – special interest groups devoted to overturning Roe and striking down the Affordable Care Act. With this pick, the president is making good on his pledge to ‘punish’ women for their choices. Judge Kavanaugh got the nomination because he passed this litmus test, not because he’ll be an impartial judge on behalf of all Americans. If he were to be confirmed, women’s reproductive rights would be in the hands of five men on the Supreme Court.
A total of 13 Democrats mentioned Kavanaugh’s pre-selection by rightwing organizations (though not all of those 13 promised to vote no as a result). I’m not entirely sure how to interpret this argument, or who its main audience is. I think the idea is to rebut the charge (from Sasse and others) that Democrats who committed to vote no are jumping to conclusions and short-circuiting the process. By invoking this pre-selection, these 13 Democrats are saying that we already know Kavanaugh’s views well enough to declare our opposition. That we don’t need more information. I imagine this rebuttal is aimed at some combination of Democrats who are on the fence, and journalists covering the debate.
This framing does not, to my ear, sound very apocalyptic. In contrast, a few Democrats brought up the breakdown of institutions. Seven Democrats brought up McConnell’s precedent of not considering a nomination in an election year. Delaware Senator Tom Carper writes in his press release:
Leader McConnell has said that he wants the Senate to move swiftly to consider Judge Kavanaugh’s nomination, despite the precedent he set when he led a yearlong blockade of Judge Merrick Garland – an eminently qualified and consensus pick. But, unlike in 2016, we are considering another Trump nominee just four months before a national election that could shift control of Congress. Our president’s 2016 campaign is currently under investigation – an investigation that has led to an ever-growing list of guilty pleas and criminal indictments. The balance of our nation’s highest court is at stake.
Carper here brings up McConnell’s precedent and the seeming hypocrisy of Republicans calling out Democrats for pre-rejecting Kavanaugh when the entire GOP did the same in 2016 to Garland. Not everyone who invoked McConnell promised to try to stop this nomination, for example Maryland Senator Ben Cardin mentioned the McConnell precedent and then expressed “grave concerns” about Kavanaugh – but did not promise to vote no or call the nomination/vetting process illegitimate.
In the quote above, Carper also invokes the Mueller/Russia investigation into Trump’s campaign. Seven Democrats mentioned this investigation. Oregon Senator Jeff Merkley offers an example of connecting that investigation to Kavanaugh (and especially his views on the President’s legal immunity), and comes close to a kind of crisis/apocalypse narrative:
New Jersey Senator Cory Booker lays out strong opposition narrative similar to Merkley’s, connecting various narratives including the Mueller investigation:
While these Democrats express strong opposition, connected to a crisis of institutions, most Democrats do not. More common are statements like the following by Minnesota Senator Amy Klobuchar:
Or Montana Senator Jon Tester who goes so far as to ask Senators to “put politics aside,” whatever that means:
So what do we make of all of this? Here are a few of my takeaways:
Kavanaugh is exactly who the GOP expected and wanted.
Those Democrats who do offer a “hard no” opposition to Kavanaugh in their initial statements often root that opposition in an assertion that Kavanaugh’s position are sufficiently known, especially his views on the Affordable Care Act and on reproductive rights. The Federalist Society and Heritage Foundation endorsements offer evidence that Kavanaugh makes good on Trump’s promise to nominate Justices with particular policy positions.
Many Democrats, even some who express their plan to vote against Kavanaugh, do not talk as if the current moment is an exceptional crisis. Rather, they treat this nomination as “business as usual.” They have serious concerns about Kavanaugh’s views, they are likely to vote against his nomination on those grounds, but they do not articulate a narrative that makes his nomination illegitimate.
A vocal minority of Democrats do articulate illegitimacy claims of either the President or the process. The Mueller investigation potentially illegitimates Trump’s ability to pick a Justice, while the McConnell precedent argues against considering any nominee until an election. It will be interesting to see if either of these narratives takes hold, either among Democrats or more widely.
A few big caveats: This was a quick analysis of the first statements I could find from each Senator. How the narrative is shaped will depend on which of these claims is amplified and repeated, both in the media coverage and by the Senators themselves. This is not analysis of either of those things, but rather trying to get a sense from the first pass reactions whether or not the political elite are trying to construct a crisis narrative, and what sort of crisis they are constructing.
But, in summary, Sasse is right. As far as elite political discourse goes, “this isn’t the apocalypse.”