BY SHASHI MALLA
Last Saturday, the US Senate (the upper house of Congress, the legislative arm of the political system), confirmed Judge Brett M. Kavanaugh as a justice of the Supreme Court, consisting of 9 justices in total. He was elected by one of the narrowest margins in history –- 50—48 — amid widespread protests, ending a rancorous, partisan fight over his nomination and solidifying a conservative majority on the highest court of the land. As masses of angry agitators stood on the forecourt and steps of the Capitol (the buildings comprising the Congress), the Senate finalized on a near party-line vote what will certainly be one of President Trump’s most long-lasting legacies: the appointment of two Supreme Court justices ( who serve for life) in just two years in an increasingly polarized nation.
Trump made a congratulatory call to Kavanaugh, who was sworn in at the Supreme Court on Saturday night. It was indeed reminiscent of a fast-track process. In the same evening at an election rally, Trump bragged that the Senate vote was a pivotal win for Republicans: “I stand before you today on the heels of a tremendous victory for our nation, our people and our beloved Constitution.” Kavanaugh’s name electrified the audience to thunderous applause.
The two-vote margin for Kavenaugh was the narrowest for a Supreme Court candidate since 1881. Democrats were antagonized by the nominee’s partisan critique in his Senate defense in late September as he described the opposition to his nomination as retaliation for Hillary Clinton’s loss in the 2016 presidential election. They questioned his temperament for the nation’s highest judiciary.
Ever since his nomination, Republicans have forcefully defended Kavanaugh’s character and fitness to serve on the highest bench and have continuously attacked Democrats for the turbulent conflict. The Senate Judiciary Committee Chairman Charles E. Grassley (Republican of Iowa) lamented: “Democratic leaders did everything in their power to make Judge Kavanaugh’s confirmation about everything except his judicial record . . . . When routine process arguments failed, they resorted to outright character assassination.”
Kavanaugh, 53, served in the George W. Bush White House as staff secretary, one of the senior-most positions. He has also spent a dozen years on the Court of Appeals in the
Washington, D.C. Circuit, considered the country’s second highest court. He was a top deputy in the office of independent counsel Kenneth W. Starr when Starr was conducting an enquiry into incumbent democratic President Bill Clinton [in conjunction with his affair with White House intern Monika Lewinsky]. His nomination was rife with partisan tensions from the very start as he was to replace Justice Anthony M. Kennedy, a crucial swing vote on landmark decisions involving abortion access and gay rights. His opponents repeatedly cautioned that Kavanaugh could vote to overturn the 1973 decision in “Roe v. Wade” which legalized abortion.
Then Kavanaugh’s nomination process collided with the trajectory of the year-old “ # MeToo” movement. Dr Christine Blasey Ford, professor of Psychology in California, came forward and detailed her sexual assault allegation to “The Washington Post”. She said the assault by Kavanaugh [in the presence of his friend] occurred at a party [while they were still teenagers] in suburban Maryland in the early 1980s. Two other women have since accused Kavanaugh of sexual misconduct.
After a hearing of the Judicial Committee that included testimony from both Ford and Kavanaugh, the confirmation vote was delayed a week to allow the FBI to investigate the allegations. Republicans said the FBI report [which has not been made public] exonerated Kavanaugh, while Democrats argued that it was limited in scope and time to be anywhere informative.
Senator Joe Manchin (West-Virginia) broke with his own Democratic Party on what may be the most consequential vote of the Trump era. He did so because of personal/political reasons to placate Republican voters, since there are simply not enough Democrats in the state to re-elect Manchin. There is little doubt that his Senate vote to confirm Kavanaugh was in line with the wishes of the majority of West Virginia voters who gave Trump a massive victory in 2016 by 42 percentage points. He is now facing a firestorm back home.
In contrast, his Democratic colleague, Senator Heidi Heitcamp also from a Republican-majority state (North Dakota) and also up for re-election in November, had the courage and conscience to vote against the nomination.
Republican Senator Susan Collins (Maine) a swing vote, considered an independent on many issues and a champion of women’s rights, made a tortuous argument for Kavanaugh and against Dr. Ford because of the apparent lack of corroborating evidence. In fact, there was enough evidence, if only the FBI had done a better job. According to brain scientists and medical doctors and psychologists, Dr Ford’s memory was perfect in the main case of sexual assault. Judge Kavanaugh could not remember probably because he was beer-befuddled at the time.
In a reminder that Saturday’s vote might not be the last word on the accusations, House minority leader Nancy Pelosi (Democrat of California) said she will file a ‘Freedom of Information Act’ request to make public the FBI report and other related documents.
The sole Republican senator to oppose Kavanaugh was Lisa Murkowski (Alaska). Trump did not miss the opportunity to attack Murkowski, predicting that she “will never recover” politically for her opposition to his second Supreme Court nomination. What can surely be anticipated is that the acrimonious politics over Kavanaugh’s confirmation is likely to continue in the coming weeks, months and even years.
The vicious confirmation clash is likely to have far-reaching implications in next month’s midterm congressional and gubernatorial elections, which is turning out to be a referendum on Trump’s (mis)rule itself. Republicans nationwide are confronting a galvanized Democratic base led by women infuriated by the treatment of Dr. Ford who detailed in emotional testimony her allegations against Kavanaugh.
For all intents and purposes, the mid-term elections have already started (the first Tuesday in November — 6). Voters have already begun (or will do so soon) heading to the polls in several key states for early voting. This is different from absentee voting. Early voting allows voters to cast their ballots in person during any period before Election Day, for any reason. This means that campaigns are already shifting to ‘get-out-the-vote’ mode. This also signals another paradigm shift — the process is now a marathon, lasting weeks rather than hours. This week alone early voting kicks off in the following states: California, Iowa, Montana, Nebraska, Arizona, Indiana and Ohio.
According to Michael McDonald, associate professor of political science at the University of Florida, when it comes to in-person early voting, Democrats tend to perform better, as opposed to Republicans, who tend to run up their numbers in turnout from mail-in ballots and same-day voting. Professor McDonald is of the opinion that if it looks that Democratsare losing the early vote, it generally means they have lost the election.
The House race looks very good for Democrats, because of history, Trump’s relatively low approval rating and the playing field tilted towards Democrats. The incumbent president’s party has always lost seats in all but three mid-term elections since the Civil War (1861-65) – 1934, 1998, 2002. Not only is the ‘out’ party historically more energized, but in today’s explosive circumstances, the Democrats are even more so. There is the perception that a historic injustice has been meted out to Dr. Ford by an unscrupulous Republican Party, a corrupt, shady and dastardly president, and a manipulated FBI.
Democrats need to win a net number of 23 f Republican-held seats to take control of the House. The real question mark is the Senate and whether a Democratic majority is possible there. They need 2 net number of Republican-held seats (without losing any of their own-held seats) to win control of the Senate. This will be a hard nut to crack.
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