How to Seize Control of the Supreme Court in 9 Easy Steps

When Justice Anthony Kennedy announced his retirement from the Supreme Court in June, Republicans saw an opportunity. Kennedy has been the Court’s swing vote for a decade. He leans Conservative, but votes with liberals frequently enough to be a thorn in the GOP’s side. If Republicans can replace him with a rock solid Conservative, they can secure control of the Supreme Court for decades to come.

So, as is their habit, they came up with a really terrible plan.

Step 1) Get the current swing vote to retire by signaling you’ll replace him with someone respectable (Note: do NOT follow through).

Judicial picks are pretty much the only area where Trump has not done anything wildly out of the norm. His picks are all approved by the Federalist Society, a Conservative judicial group that has been working for decades to reshape the Courts. His nomination of Neil Gorsuch to the Supreme Court last year was the best example of this. Gorsuch was squeaky clean, highly respected, and a former Kennedy clerk. Trump’s judicial picks sent a clear signal that Kennedy could retire and Trump wouldn’t appoint someone ridiculous like Fox News host Judge Jeanine Pirro.

However – and this is crucial – Step 1 only works if the actual pick winds up being completely, across-the-board terrible. That reveal can’t come out till later, obviously, but it’s important to keep in mind.

Step 2) Select a nominee so bad that your party’s leader in the Senate doesn’t even like him.

Judge Kavanaugh served as the Staff Secretary in George W. Bush’s administration back in the early aughts (yes, that’s the term I’m going with). The Staff Secretary is essentially in charge of every piece of paper that reaches the President. The role is involved in just about everything the President does. He served in that role for three years, meaning he touched millions of documents.

As Senate Majority Leader Mitch McConnell (R-KY) pointed out to the White House, a paper trail that massive is probably not helpful if you’re going for a speedy confirmation. McConnell, the guy who would be in charge of making sure Kavanaugh would have the votes to be confirmed by the Senate, specifically told the White House not to nominate Kavanaugh.

Naturally, the White House went ahead and did it anyway.

Step 3) Make sure that the nominee’s first public statement is an obvious lie.

The third sentence Kavanaugh said to the American public after being nominated to the Court was “No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”

Everyone knows President Trump. We all know that he didn’t do any of that. It is a clear lie.

But hey, it’s just one lie, right? (Remember this; it’ll come up again.)

Step 4) Pretend the nominee that clearly wants to overturn Roe v. Wade doesn’t want to overturn Roe v. Wade.

Overturning Roe, the Supreme Court case that made abortion legal nationwide, is the Holy Grail of the Conservative movement. Absolutely their top goal. Remember the Federalist Society from Step 1? They only approve Judges who want to overturn Roe. Most Republican Senators would only support a nominee who would overturn Roe. Kavanaugh has specifically praised one of the dissenting opinions in Roe. Kavanaugh would vote to overturn Roe.

But if Kavanaugh and his allies say that outright, then it will be hard for pro-choice Republicans Lisa Murkowski (R-AK) and Susan Collins (R-ME) to vote for him. So Kavanaugh calls Roe precedent and all the Republican Senators that hate abortion mysteriously refrain from questioning him about it.

Seriously. He’s going to overturn Roe.

Step 5) Produce only a fraction of the nominee’s records.

Once you’re about halfway through the process, you’ll notice that, hey, maybe Mitch McConnell was actually right about Kavanaugh having a massive paper trail. Now, you could slow the process down and wait for the National Archives to collect and release all of Kavanaugh’s documents before holding confirmation hearings (this is what’s supposed to happen).

Alternatively, you can let a private lawyer and Bush ally choose which documents to release, release only a fraction of the relevant material, label most of that material as “Committee Confidential” so the public doesn’t get to see it, and drop literally thousands of pages of documents 12 hours before the week-long hearings are set to begin.

Yes, they actually did this.

Step 6) Make sure the nominee will be credibly accused of serious sexual assault.

Before Kavanaugh was even nominated, Christine Blasey Ford, a college professor, sent a letter to her Senator (Dianne Feinstein (D-CA)) warning that Kavanaugh had sexually assaulted her when they were in high school. Ford also began speaking off the record to the Washington Post.

Feinstein tried to respect Ford’s confidentially, but the letter’s existence eventually leaked and Ford came forward. If you’re reading this, you probably already heard about her testimony before the Senate Judiciary Committee. Suffice to say, she came across as a pretty believable and sympathetic witness.

Ford’s allegation has rocked Kavanaugh’s confirmation prospects, turning several previously favorable Republican and Democratic Senators into real toss-ups.

Step 7) Repeat Step 6 as necessary.

Since Ford’s allegation, two other women have come forward to allege that Kavanaugh committed or partook in some form of sexual assault or harassment. Several other anonymous allegations have also been made privately to the Senate Judiciary Committee. 

Step 8) Make sure the nominee repeatedly lies under oath.

Just nominating an alleged serial predator to the Court wouldn’t be good enough for the GOP though. So when Kavanaugh testified on Thursday in response to Ford’s allegations, he decided that he had to repeatedly and blatantly lie if he really wanted to make his mark.

By all accounts, Kavanaugh was a pretty heavy drinker in high school and college. But he claimed that he never blacked out from drinking. He claimed that multiple references in his high school yearbook to blacking out while drinking weren’t references that at all. He downplayed the importance of the “ralph club.” He said that he didn’t remember the results of a sporting event he referenced with the phrase “Who won that game again?” not because he was drunk, but because he was having too much fun with friends to pay attention.

In that same yearbook, he (and several of his classmates) called himself a “Renate alumnus,” in reference to one of his female classmates. That would seem to be a pretty crude and gross sexual joke about this girl. In his hearing, he testified that it was just an acknowledgement of friendship. That’s not how she took it.

Step 9) When that nominee fails, scramble to push through a replacement, lose the Senate due to Steps 7 and 8, get stuck with Anthony Kennedy 2.0.

Seriously, Republicans are playing with fire here. They’ve got just over a month till the midterm elections and then another two months or so of the “lame-duck” session before the new Congress convenes. The confirmation process takes roughly two months, but can easily take longer.

If they drop Kavanaugh today, they would have a decent shot to confirm an equally Conservative nominee before the new Senate takes control. If they struggle to push Kavanaugh through for another week or two and then try to replace him, their window may close. Certainly, Democrats will have a strong incentive to delay as long as possible.

Of course, if Republicans hold the Senate in November (FiveThirtyEight gives them a 2 in 3 chance of doing so), then they don’t have to worry at all, even if the process takes a while. But with a potential wave building against the GOP, Senate control is certainly not a guarantee.

So what happens if Democrats take the Senate? Well, a Kavanaugh style nominee probably isn’t going anywhere. But a more moderate nominee might. Progressive activists would likely call for Senate Democratic Leader Chuck Schumer (D-NY) to block Trump from appointing anyone to the Court for the next two years. But there are a number of Democratic moderates who would object to that strategy. Schumer himself might not think it’s a smart move.

It would probably take some time to work out a deal with the White House, but there’s a good chance that a Democratic Senate would eventually confirm a new moderate Conservative justice to replace Kennedy. In others words, we’d be right back where we started in terms of the Court’s ideology. 

Step 9a) Confirm your terrible nominee because nothing matters anymore.

They already have a President accused of serial sexual assault. What’s a Supreme Court Justice really matter on top of that?

Photo Credit: Ninian Reid Flickr via Compfight cc