Anyone who thinks the brawl over Brett Kavanaugh and the Supreme Court ended with his confirmation by the Senate on Saturday might want to listen again to Chuck Schumer’s floor speech. The Minority Leader made clear that Democrats are going to use accuser Christine Blasey Ford as a campaign prop from here to November and beyond.
Meantime, Senate Republicans held together and prevented a Supreme Court defeat that would have been a political disaster. Judge—now Justice—Kavanaugh deserves the most credit for refusing to withdraw and fighting for his seat under enormous pressure.
By forcefully defending his integrity and repudiating the Democratic strategy, he gave GOP Senators the confidence to stand with him. He would have been defeated had he played it as meekly as his critics now say in retrospect that he should have. Credit to Donald Trump too for standing by his nominee.
Majority Leader Mitch McConnell somehow managed to keep his conference together except Alaska’s Lisa Murkowski. Susan Collins opposed ObamaCare repeal, but Mr. McConnell understands you never know when you might need every vote with a 51-vote majority. The Maine Senator’s confirmation speech was the finest moment of this Congress and in any confirmation fight in many years.
Democrats won’t forgive Mr. McConnell for denying Barack Obama’s nominee Merrick Garland a hearing in 2016 pending the presidential election. But he was doing what Democrats would also have done, and what Chuck Schumer explicitly said in 2007 that they would do when Democrats held the Senate during the last year of George W. Bush’s Presidency.
Mr. McConnell’s legacy now includes a new conservative majority on the Supreme Court, as well as some 26 new appellate judges, substantial deregulation and tax reform. He has done more policy with a narrow Senate majority than any leader we can recall. Had John McCain not defected on health care, he might have even repealed most of ObamaCare. More than a few people on the “anti-establishment” right owe Mr. McConnell an apology.
As for the new Court majority, Democrats are predicting doom, but our guess is that it will be more cautious than they fear. The Justices themselves say that the dynamics at the Court change each time a new colleague joins them, and often in surprising ways.
Chief Justice John Roberts will become the swing vote, and he is an incrementalist who will not want to overturn precedents willy-nilly. With the politics surrounding the Court so polarized, he might be more cautious than warranted on issues where the Court needs to clear up its own indecision. One of those issues is the constitutionality of racial preferences, about which former Justice Anthony Kennedy continued the legal hair-splitting of Sandra Day O’Connor. Justice Kavanaugh is likely to join the other four conservatives.
Another area ripe for the Court to be heard again is the Second Amendment. Cities and states have been willfully defying the Court’s Heller and McDonald rulings with gun bans and other regulation, and liberal lower courts are upholding the laws. The Court needs to set clearer limits on the kind of regulation that is constitutional.
The real source of Democratic grief is less what the new Roberts majority might do than what it won’t. For some years at least, the Supreme Court is unlikely to be the left’s alternative legislature for its policy agenda. A conservative majority won’t bar arbitration if Congress hasn’t done so, won’t create new rights that aren’t in the Constitution, and will be more skeptical of executive-branch rewrites of Congressional statutes.
The paradox is that over several years this could reduce the political tempers over the Supreme Court. The reason nominations have become so contentious isn’t merely because the country is politically divided. It is because progressives have used the courts as a political pile-driver on abortion rights, same-sex marriage, and the death penalty, among other controversial issues. Democrats will now have to achieve their goals the old-fashioned way—by winning elections.
Which brings us back to Mr. Schumer’s use of Justice Kavanaugh to rally voters in November. The stakes are high, especially for the courts. If Democrats retake the Senate, no Donald Trump nominee will be confirmed for the Supreme Court and perhaps not the appellate circuits. Democratic Rep. Jerrold Nadler, who would be Judiciary Chairman if Democrats retake the House, says he will investigate Justice Kavanaugh for perjury and reopen the sexual-assault probe. He means it.
We doubt this is what most Americans want from Congress, but it is where the Resistance will drive Democrats. The ugly Kavanaugh confirmation has awakened many complacent Republicans to the methods of the American left. Those methods will be in charge if Democrats control Congress.