What the Kavanaugh Confirmation Hearings Show

The Senate Judiciary Committee’s confirmation hearings on Brett Kavanaugh are revealing the extent to which Chairman Chuck Grassley and other Republicans will invent unprecedented procedures to shield the controversial nominee. But the criticism aimed at Democrats by the activist base, for the failure to challenge the nomination with sufficient vigor also demonstrates the base’s disapproval that Democrats will surely confront should they win control of the House in November.

Several liberal groups have launched a pointed attack on Senate Democratic Leader Chuck Schumer, accusing him of pulling his punches in the Kavanaugh confirmation battle by failing to ensure unanimous opposition to the nominee by the Senate minority. The frenzied tone of their condemnations reveals a remarkably uninformed understanding of the powers and limitations of congressional leadership.

This purist insistence will present real challenges should Democrats win back a House majority in less than two months. The hard left will claim credit, doubtless employing the false syllogism common to those who interpret events as resulting from their actions: the howling dog claiming credit for the moon rising comes to mind. True, some Democrats may well win their seats because of a higher-than-average turnout of young and minority voters who historically underperform in off-year elections; but most of the seats that would account for Democrats reaching the 218 majority level will be won in swing (if not Republican) districts whose new members will not be taking their cues from Alexandra Ocasio Cortez or Bernie Sanders.

In Schumer’s case, thirteen progressive groups sent a letter this week informing the New York senator “Your job as Senate Democratic leader is to lead your caucus in complete opposition” to Kavanaugh’s nomination.” They tell Schumer “You are failing us” because not all Democrats have declared their intent to vote against the nominee. Asserting (dubiously) that Democrats often offer “little to no fight on critical issues with enormous, long-term consequences for all Americans,” as lead critic Elizabeth Beavers of Indivisible declared, the signatories conclude that Schumer’s performance is “not the leadership we need. If Schumer were serious about winning on Kavanaugh, we would have had 49 ‘no‘ votes weeks ago. It’s his job to get it done.” Anything less would be “a massive failure of your leadership.”

Beavers and Indivisible do not explain what “winning” means in this context: defeating Kavanaugh, securing all Democratic votes in opposition (but still losing the fight), or something else.  While it would be terrific if all Democrats vote against Kavanaugh, the Republicans likely have the votes to confirm him without a single Democratic “yea.” The ability of several vulnerable senators like John Tester, Claire McCaskill and Heide Heitkamp to survive their re-election battles in heavily Republican states – which would enable them to fight in the 116^thCongress on a host of crucial issues (including the Affordable Care Act, which all Democrats did vote to sustain) — might be enhanced by a “no” vote. If Beavers or Indivisible wants to duke it out with those senators, fine; but deal with the consequences of pointlessly losing seats that might well make it tougher for Democrats to regain the Senate majority in 2020.

But don’t confuse those senators’ self-interest with Schumer’s performance. Congressional leaders lack the awesome powers that the critics expect Schumer to wield. They are elected to serve their members, not to govern and discipline them. Even Nancy Pelosi, who would never grant her members a pass on key votes (unlike some other members of the leadership) would not punish them overtly, especially if the issue involved a matter of conscience or political survivability. When John Boehner did punish several of his flock who opposed his candidacy for Speaker by removing them from their plum committee assignments, his standing suffered, not theirs.

In the case of the Senate, the powers of the Leader are notoriously thin. As Harry Reid used to bemoan even when he enjoyed a filibuster-proof 60-vote majority, he had to win every Democrat to overcome GOP filibuster threats (whereas the House leadership, without any such super-majority threshold, could afford to lose dozens of Democrats and still pass legislation).

“The leader of the Senate relies on two prerogatives, neither of which is constitutionally or statutorily guaranteed,” Republican leader Howard Baker once noted, “the right of prior recognition …  and the right to schedule the Senate’s business. These, together with the reliability of his commitment and whatever power of personal persuasion one brings to the job, are all the tools a Senate leader has.” Longtime Democratic Leader Mike Mansfield offered a similar observation. “I’m not the leader really,” the Montanan observed. “My Democratic colleagues are the leaders. My job is just keeping the party together, smoothing over the differences, keeping tempers, and trying to achieve the possible despite the differences inherent in the party.”

If the signatories of the letter to Schumer take out marginal Democrats for casting a vote without consequence (assuming all Republicans support Kavanaugh, as they surely will), they will have to assume responsibility for undermining Democratic chances for achieving a majority anytime soon. In their spare time under such circumstances, which they will have since there won’t be any need to lobby Congress for progressive legislation, they might read up on some basic information about the nature of congressional coalitions and the limited powers of congressional leaders. In the meantime, they should avoid sounding like Tea Partiers who delight in assaulting their own leaders instead of figuring out how to pass the legislation tens of millions of their supporters elected them to approve.

John Lawrence, a visiting professor at the University of California Washington Center, worked for 38 years in the House of Representatives, the last 8 as chief of staff to Speaker/Democratic Leader Nancy Pelosi. This post was originally published on John’s blog, Domeocracy.