Op-Ed

Democrats better wise up. Brett Kavanaugh’s sexual history is the least of their worries | Opinion

In 2018, Brett Kavanaugh, accused of sexual assault, testifies during the Senate Judiciary Committee hearing on his nomination be an associate justice of the U.S. Supreme Court.
In 2018, Brett Kavanaugh, accused of sexual assault, testifies during the Senate Judiciary Committee hearing on his nomination be an associate justice of the U.S. Supreme Court. Pool/Getty

Did Brett Kavanaugh, now 54, sexually mistreat young women when he was in high school and college?

Did he then lie under oath last fall during his U.S. Supreme Court confirmation hearing when he vigorously denied accusations against him and offered innocent explanations for seemingly embarrassing or incriminating entries in his high school yearbook?

I long ago made up my mind on these questions and I expect you, whether liberal or conservative, did as well.

If anything, the new allegation against Kavanaugh, rolled out in a curious fashion by The New York Times over the weekend, reinforced the conclusion you came to nearly a year ago about Kavanaugh’s character and honesty.

And, again, no matter where you come down, you probably agree that it’s a pointless waste of energy now to relitigate the matter or consider new testimony seeing as there’s close to no chance that he’ll be forced off the bench.

One more point of presumed bipartisan consensus: The U.S. Supreme Court is a big deal. Who sits on it really matters. Court rulings have an enormous impact on our lives and on the implementation of public policy. The power to fill vacancies on the court is one of the most consequential powers a president has, particularly when he or she enjoys the support of a pliant majority in the U.S. Senate that will vote to confirm the nomination.

Republicans tend to feel this more strongly than Democrats. Even those who have grave misgivings about President Trump’s character, temperament and honesty and who disagree strongly with his trade policies and his embrace of foreign despots will eagerly pull the lever for him again in the November 2020 election because he has proved to be such a reliable nominator of conservatives to lifetime seats, not just on the U.S. Supreme Court but also on the lower federal courts.

In their focus on issues — healthcare, the environment, immigration, gun control, poverty, civil rights — the Democrats usually forget to emphasize that many of their progressive plans and proposals will be doomed if the Supreme Court rules against them.

Consider what happened in 2016. Justice Antonin Scalia died unexpectedly in February of that year, and Republican Senate Majority Leader Mitch McConnell refused even to hold hearings for Judge Merrick Garland, President Obama’s nominee to fill the vacancy. His reason: There was a presidential election in a little more than eight months, and we should “let the people decide” who gets to nominate the next justice.

Don’t think for a moment that McConnell was acting on principle. On May 28 of this year he told the Paducah (Kentucky) Area Chamber of Commerce that if a vacancy on the court opened up just before the 2020 election, Senate Republicans would help Trump fill it quickly.

Democratic candidates and officeholders ought to have banged their shoes on the table about this brazen violation of norms all year. Instead, presidential nominee Hillary Clinton barely brought it up and didn’t mention the Supreme Court during her acceptance speech at the Democratic National Convention.

Democratic voters ought to have been galvanized and outraged, on fire to get to the polls to make sure Trump and the Republicans didn’t seize control of the courts. Instead, because Clinton rubbed them the wrong way or they were sore at the way the party had treated Bernie Sanders, many stayed home and sulked or voted for other-party candidates.

Republican voters, in contrast, kept their eye on the Supreme Court. Enough of them quelled their doubts about Trump to hand him a narrow Electoral College victory and the opportunity to name conservative Neil Gorsuch to replace Scalia. Trump has since installed Kavanaugh on the Supreme Court along with 148 lower court judges.

Respect. Republican voters’ resolve revealed a canny understanding that many of the planks in any party’s platform might as well be made of the flimsiest balsa wood if the courts don’t like them, particularly when Congress is gridlocked and the executive branch tends to govern by fiat. And that the key to stripping away abortion rights and preserving extremely permissive gun rights for generations to come is adding another vote or two to the Supreme Court.

Democrats are supposedly wising up. A September 2018 Pew Research Center poll showed 81 percent of Democrats view Supreme Court appointments as “very important” to their vote, compared to just 72 percent of Republicans. Yet the issue has barely come up in the Democratic presidential primary debates and major candidate speeches so far.

Brett Kavanaugh isn’t going anywhere, no matter what a book or newspaper excerpt says about him. But as Democrats move on, I hope they are reminded by this minor news eruption of how scandalously cursory the FBI’s investigation was of the claims against Kavanaugh, how outrageously the Democrats were robbed of the Scalia seat and how critical it will be for the party to keep the Supreme Court central to the campaign ahead.

Eric Zorn is an op-ed columnist for the Chicago Tribune.

(c) 2019 Chicago Tribune

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