Confirmation

“I merely took the energy it takes to pout, and I wrote some blues.” -Duke Ellington

In the coming weeks and perhaps months much political contention in the U.S. will center on the Senate confirmation hearings for Brett Kavanaugh, Donald Trump’s nominee to replace retiring Justice Anthony Kennedy on the Supreme Court.

Kavanaugh’s confirmation would represent a terrible development, and I strongly support those who are doing everything they can to work together to oppose the confirmation by mobilizing strong and united Democratic opposition. My support is partly moral, because I believe that fundamental human rights are potentially at stake; but it is mainly political, because I believe that it is important to build a strong and successful political opposition to Trumpism that is capable of halting its assaults on freedom and moving the country forward in a more just and egalitarian way. At the same time, in the name of both the moral and the political convictions, I think it is important to be mindful of the political complexities of the current moment, and to thus pay serious attention to questions of timing, which involve placing the current moment in a broader temporal perspective.

For in politics as in music, timing is everything.

There is now; there is election day; and there is the long-term political horizon. Each of these “moments” is distinct, even if any sensible politics must seek to link them.

A few things are crystal clear:

1. Brett Kavanaugh is a steadfast and staunch conservative who cut his teeth working with Kenneth Starr in the effort to impeach Bill Clinton. He has strong Bush ties, and is not as far right on social issues as some of the others on Trump’s short list of nominees. But he is clearly on the right nonetheless, and he is particularly conservative when it comes to defending the executive power of the President.
2. Kavanaugh, if appointed, would be the second Trump appointee to the Supreme Court, and there is no guarantee that he would be the last. Further, these SCOTUS appointments are part of a broader Trump effort to fill the federal judiciary with far-right judges, which is itself part of the broader Trump agenda of disrupting the U.S. state, weakening its powers of civil rights and regulatory enforcement while strengthening its police and executive powers.
3. Kavanaugh’s confirmation would empower a conservative majority on the Court, placing in serious jeopardy some of the signal achievements of the past half-century, including reproductive freedom, civil rights, voting rights, labor rights, and environmental, health, and safety regulations. These achievements represent more than liberal “policy preferences”; they have come to be regarded–in law, politics, and culture–as fundamental requisites of democratic citizenship. These rights are already under assault via the Trumpist Republican party’s control of the White House and both Houses of Congress. Kavanaugh’s confirmation would render it highly unlikely that this assault would be checked by the Court.
4. Beyond these likely direct legal and policy consequences of the Kavanaugh confirmation, there is the further fact that the conservative Court majority it would create is only possible because of the outrageous, “hardball” 2015-16 maneuvers of Senate Republicans, who refused for over a year to even give a hearing to Merrick Garland, nominated, according to Constitutional prerogative, by then-President Barack Obama. This refusal represented a fundamental breach of long-standing constitutional norms. The ratification of Trump’s SCOTUS nominees is thus also a kind of retrospective ratification of this normative breach.
5. Kavanaugh’s confirmation for all these reasons would represent both an actual and a symbolic victory for Trumpism, further empowering Trump’s effort to dismantle central features of America’s (admittedly flawed and precarious) liberal democracy. Anyone who is against Trumpism, and who values liberal democracy, ought thus to oppose Kavanaugh.
6. At the same time, Kavanaugh’s nomination will be very difficult to stop, and his confirmation is likely. The Republicans currently control 51 Senate seats (50 if John McCain remains unable to attend session) in addition to the tie-breaking vote of Vice President Mike Pence. While there are questions about how Susan Collins and Lisa Murkowski will vote, it is likely that neither will in the end buck their party. Most importantly, any Republican defections would only become important if the Senate’s 47 Democrats and their two Independent allies voted together, as a bloc, something that is itself quite unlikely given the pressure being placed on a number of red state Democratic Senators currently up for reelection, including Joe Manchin (West Virginia), Doug Jones (Alabama), Claire McCaskill (Missouri), Heidi Heitkamp (North Dakota), and Joe Donnelly (Indiana).
7. Liberal groups are nonetheless mounting a strong and important campaign to oppose the nomination. Many activists and even some leaders inside the Democratic party and beyond it want to model this opposition on the successful defeat of Republican efforts to repeal Obamacare in 2017, emphasizing the threats to health presented by the Kavanaugh confirmation, especially the danger of a reversal of Roe v. Wade and an invalidation of the Affordable Care Act. They are targeting Murkowski and Collins, along with Red state Democrats most likely to support the nominee. They are also treating the campaign as part of the broader effort to flip the House and perhaps even the Senate in the Fall.
8. The conventional wisdom, well stated by Jordain Carney in The Hill, is that this liberal effort is “risky,” both because it is unlikely to succeed and because it places the Democratic party in “a terrible bind.” “While there is a pressure from the left to play hardball to try to gum up the Senate,” Carney writes, “and even punish Democratic senators who support Kavanaugh, such tactics could backfire for the 10 red-state Democrats facing reelection in states Trump won in 2016.”

This strategy is risky. But the failure to pursue such a strategy is also risky and indeed, I would argue, it is riskier. For by placing the short-term electoral concerns of incumbents above the long-term concerns of party-building and voter mobilization, such a failure would foreclose in advance the possibility of the kind of invigoration that the Democratic party sorely needs now more than ever.

The conventional wisdom neatly sums up a conservative “electoral logic” of Red state Democratic incumbents and the party establishments who have a vested interested in the re-election of these incumbents, who are genuinely in a “bind.” This “logic” is especially compelling to these incumbents. But it should be of interest to all of those on the left who care about the present and future dangers posed by Trumpism; for a stronger Republican Senate majority would only further intensify those dangers.

At the same time, the conventional wisdom does not sum up the “logic” of social movement activists, and Democratic party dissenters and insurgents, whose core value commitments make politicians like Manchin and Heitkamp difficult to support with any enthusiasm under any circumstances, and make support for such politicians in the face of their potential support for far-right Trump nominees particularly distasteful. For these dissidents and activists, the commitment to transforming the party requires them to refuse the simplistic electoral calculus that always benefits incumbents by requiring activists to perpetually defer their activism until “after the next election” (a moment that can never come almost by definition, given the regularity of elections).

There is a real tension between these two “logics,” and it is a tension at the heart of the challenges facing the Democratic party at this critical juncture in the history of liberal democracy.

Especially given the likelihood that the Republicans will be able to confirm the Kavanaugh nomination without need of any Democratic votes in the Senate, it is not unreasonable to think that some Red state Democratic Senators will end up not opposing the nomination and might well support it as a way of retaining the support of those Republican voters in their states on whom they have long relied. It would be absurd and counterproductive for liberals working hard to oppose Kavanaugh to fail to appreciate this. But it would be equally absurd and counterproductive for Democratic party regulars to expect Red state Democratic insurgents and social movement activists to simply keep quiet, suspend their activism that is based on deeply held and fundamental value commitments, and limit themselves to supporting the candidacies of conservative Democrats who may not be Republicans, but who also are pretty far from the things that liberal Democrats hold most dear.

Those of us who regard reproductive freedom, for example, as a fundamental right essential to the autonomy and health of women, cannot be expected to silence our concern and indeed our outrage at the prospect that this right is likely to be further compromised if not eliminated by the confirmation of Kavanaugh. For us, a Democratic party that is agnostic about this right is a Democratic party that fails us and fails the universal values for which it claims to stand. We must actively oppose the enemies of reproductive freedom; we must press our representatives to oppose them; and we must regard those representatives who fail to oppose them—and who thereby support restrictions on reproductive freedom, whether expressly or tacitly—as representatives who have lost our confidence, and ought to be challenged, and eventually replaced, by candidates who are committed to supporting reproductive freedom.

Now obviously, reproductive freedom is not the only issue of concern for even its most ardent supporters. And so most of us are faced with the need to balance this concern with a range of other concerns as part of the process whereby we make political choices, including the choice of for whom to vote. But that is a choice that each of us is to make in light of our values, and it cannot be coerced by calls for deference to incumbent officeholders and party elites.

How can those of us who recognize the tension between the two “logics” and yet are reluctant to sacrifice one to the other make sense of this? The key, I submit, is timing.

It is essential, now, to work hard to oppose the Kavanagh nomination, and to press every single Democratic Senator to use the confirmation hearings to raise procedural and substantive concerns, and then to vote against Kavanaugh. A unified “no” vote sends a signal of opposition to Trumpism; and while this might alienate those who support or are on the fence about Trump, it also might persuade many disenchanted Democratic “base” voters to actually turn out to vote in November and beyond. As Dick Polman writes in the Atlantic, “Fighting a court nominee requires that the stakes be framed as relevant to the average voter’s life. And Democratic candidates nationwide are arguably on strong turf if they oppose Kavanaugh on health care.” Polman cites a recent bipartisan poll that identifies health care as the top-ranked issue in the 2018 midterms, with 67% of those who rank it highest wanting to see a Democrat controlled House. The same goes for opposition to Kavanaugh on the grounds he would kill Roe v. Wade. Again, Polman: “According to a Kaiser Family Foundation poll released two weeks ago, 68 percent of women, 73 percent of Independents, and 74 percent of reproductive-age women said they don’t want Roe overturned.”

And then there’s the Mueller probe. Polman suggests this too as a basis for unified Democratic opposition:

So it seems plausible that…vulnerable red-state Democratic senators could well be on solid ground if they were to unite with the rest of their caucus and ask Kavanaugh whether he believes that presidents should be above the law. According to the Democrats who are calling for unity, that alone is the seminal issue of this era. Midterm elections are driven by base enthusiasm, and grassroots Democrats are stoked to turn out this fall (as recent primary and special-election turnouts have demonstrated). The red-state incumbents are likely to lose in November if they kill that enthusiasm by waving the white flag. Even if they wave it, Trump and the Republicans will keep attacking them anyway. The argument for united engagement is that it’s better to gain voter respect than cave to a bully.

This, indeed, seems to be the strategy currently supported by Democratic leaders in the Senate; for, in spite of the risks it poses, these leaders seem to have learned from their earlier timidity regarding the Garland nomination, and seem ready to mount a real opposition.

At the same time, this opposition might not succeed. And given the probability that the Senate Republican majority will hold, it is possible, and perhaps likely, that in the end some of the Red state Democrats facing re-election will defect.

One of those currently on the fence is my Senator, Indiana’s Joe Donnelly. Donnelly has relied heavily on “swing voters” in “swing districts” in the state; in 2012 he carried 22 Indiana counties that then went for Trump in 2016. Donnelly has been particularly solicitous of these voters, in ways that make many Democrats, myself included, profoundly uncomfortable and indeed sometimes downright angry. His website, for example, goes so far as to boast that “Joe Donnelly votes with President Trump 62% of the time” (according to FiveThirtyEight, the correct figure is 54.1% of the time).

As a number of commentators have noted, Donnelly is walking a political tightrope on the abortion issue—in January, for example, he was one of only three Democratic Senators to back a Republican-sponsored bill limiting abortion–and on the Kavanaugh nomination. According to NBC News: “Already a pro-GOP group, One Nation, is running digital ads telling Donnelly to ‘say no to the left’ and confirm Trump’s choice for the court. Donnelly met with the president at the White House on Thursday, along with fellow Democratic Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, both facing tough re-election races, to discuss the issue.” Donnelly himself is a critic of abortion who has been endorsed by Democrats for Life, and earlier this year he voted for a 20-week abortion ban, one of only three Democrats to do so. At the same time, again as NBC points out, “Donnelly won his Senate seat in 2012 in part due to a backlash against the severity of his opponent’s views on abortion. Republican Richard Mourdock plummeted in polls after justifying his call to ban abortion, even in cases of rape, by telling a debate audience that pregnancies resulting from rape were ultimately a ‘gift from God.’”

Donnelly voted to confirm Neal Gorsuch to the Court, and has also voted to confirm other controversial Trump appointees, including Gina Haspel and Mike Pompeo. He is currently experiencing heavy pressure from Trump and from right-wing groups such as Judicial Crisis Network to support Kavanaugh nomination.

What will he do? We do not know.

But here is the lesson of timing: It is important now to place as much pressure on him as possible to “do the right thing,” to oppose the nomination and to explain why he stands with fellow Democrats against Trump. If Donnelly caves on the Kavanaugh nomination, I will express my outrage now. But I will still vote for him in November, because the alternative is much worse. I will also conclude that he is no longer worthy of the long-term support of liberal Democrats such as myself. I will thus support efforts to reshape and reinvigorate the Indiana Democratic party so that it better reaches out to and mobilizes progressive constituencies; and I will support a vigorous primary challenge to his candidacy when he next comes up for re-election in 2024. Donnelly should not be given a long-term free pass to compromise on core values on the specious grounds that he represents “a Red state.” For real Democratic political leadership is about leading a real opposition to Trumpism. And the political “coloration” of a state is not a fact of nature; it is something that political leadership and political activism can change.

Timing is everything in this confirmation battle. There is now. There is election day on November 6. And then there is the day after. Election day is important. But it is no more important than the days that precede it and the days, weeks, and years that follow it. And even if we are successful in stopping the Kavanaugh nomination and in defending Democratic Senate incumbents in November, the real work will have only just begun.

On the theme of confirmation and timing, I close with three recordings: Charlie Parker’s famous bebop tune “Confirmation”; John Coltrane’s “26-2,” based loosely on the harmonics of “Confirmation”; and a recent recording of “26-2” by Ravi Coltrane, John’s son, which makes clear how important, and challenging, timing can be.