There are several ways to work through the options presented to Pres. Trump and the Senate Republicans with regard to filling the Supreme Court seat left vacant by the passing of Justice Ginsburg.
Some will value the taking of that seat by a reliable conservative Justice above all other considerations or outcomes. For them, selecting a nominee most likely to achieve confirmation by generating the least controversy is the best option. Getting the 6th seat on the Court is a greater service to conservatism than worrying about the impact of the process on the upcoming election.
But such an approach would mean sacrificing unnecessarily an electoral opportunity.
It does seem plausible to me that the Democrats — if convinced that Senate Majority Leader McConnell has the 50 votes he needs for confirmation — might not vociferously oppose, on substance, a minority female nominee like Judge Barbara Lagoa. It is one thing to go after another white male Ivy League Washington politician/lawyer/judge like Justice Kavanaugh. It is something completely different to mount any kind of similar frontal attack on a Cuban-American female judge, mother of three, and practicing Catholic simply because Justice Ginsburg has passed in a window of time giving Pres. Trump the opportunity to name her replacement, and he has done so.
Aggressively attacking such a nominee could lose the support of otherwise Democrat-leaning voters who identify with her life story, or simply can’t tolerate such tactics directed at a woman as opposed to a man. The Democrat base will not object, but attacking Judge Lagoa risks losing marginal votes closer to the middle of the political spectrum who might be inclined to vote against Donald Trump, but would find a reason in the ugliness of a Democrat attack on Judge Lagoa to change their mind.
A second class of voters likely to be more impacted by a divisive confirmation fight are so-called “low information” voters — voters who remain detached from the day-to-day political warfare between the parties. Believe it or not, there are millions of Americans who get through days, weeks, and months without having any interest in what Sean Hannity or Rachel Maddow has to say about anything, and for whom internet political drama is something they’ve heard about but never read. They are voters who come to the process late and without firm political convictions. The make up their mind about the candidates based in large part on a visceral reaction to what they see and hear in the last two weeks before the election.
The calendar seems to dictate that a televised confirmation hearing before the Judiciary Committee would likely take place in mid-to-late October, with a vote scheduled for the week prior to election day. So a televised battle over the nominee in late October will register with such voters and could have an impact with that 10-15% of the electorate in the middle. The calculus for whether to fight and who to fight over must take into consideration the middle of the electorate who might be persuaded.
As I said above, cooler heads in the Democrat party, if the vote is lost, should take into consideration how their antagonism will play to voters in the middle. If Judge Lagoa is the nominee, political acuity would direct the Democrat attack against Pres. Trump for making the nomination, while at the same time praising Judge Lagoa for all she has accomplished in her personal and professional lives. The Democrats should be signaling — if the vote for Ginsburg’s seat is lost — that the fight now is not about Judge Lagoa, the fight is about who might make the next 2-3 appointments to the Court by virtue of winning the election on Nov. 3.
I give the Democrats in the Senate — especially the morons on the Judiciary Committee — almost no credit for being able to game out the politics of their options. I expect them to go after the nominee in every dishonest, untruthful, and duplicitous way they can, just like they did with Brett Kavanaugh. But I think their chances of stumbling upon a smarter approach go up if the nominee is Judge Lagoa. I think the likelihood that the Democrats commit political seppuku increases significantly if the nominee is Judge Amy Coney Barrett.
That’s why I think the nominee should be Judge Barrett.
Two members of the Judiciary Committee have openly announced their anti-Catholic bigotry — Sen. Dianne Feinstein and Sen. Kamala Harris. Sen. Feinstein did it in the confirmation hearing for Judge Barrett’s nomination to the Seventh Circuit making the hideously obscene comment “The dogma lives loudly in you.” Sen. Harris questioned Judge Brian Buescher’s membership in the Catholic fraternal order “Knights of Columbus”. Sen. Mazie Hirono followed up, but I’m not convinced she even knew what “Knights of Columbus” is.
The remainder of the Judiciary Committee Democrats are a collection of dolts and dullards, with only a couple exceptions. Patrick Leahy is incapable of participating any longer other than reading from note cards prepared by his staff, which means a bunch of left-wing lunatics from Vermont control his questioning of a nominee. Sheldon Whitehouse and Richard Blumenthal have the unfortunate circumstance of being idiot lawyers who think they are brilliant, and a jurist such as Judge Barrett will crush them if they make any effort to engage her substantively.
Richard Durbin is a crafty guy and probably avoids trouble. Same for Amy Klobuchar — who would have trouble making trouble even if she wanted to. Chris Coons is one guy who can probably make it through a meaningful line of questioning without sounding like an idiot or creating unnecessary drama. Corey Booker is thinking about 2024, knows this is an opportunity to stand out, and has the capacity to make a huge problem by grandstanding on some issue he does not understand. But at that point, he’s more likely to immediately “shrink from the fight” when he realizes he’s ventured into deep water.
That leaves us with Mazie Hirono. She is guaranteed to say something both stupid and offensive — without realizing she’s done it. That means she’s also capable of doubling down and continuing to go forward on the topic. If Joe Biden were still in the Senate, she would have a competitor for being its dimmest bulb. As things stand, she’s in a class of her own, but she won’t be dissuaded by that. She’s a crusader without an intellectual sword.
Harris deserves further mention because the left-wing will expect something from her. The problem is that she’s not a very good lawyer — never has been. Her questioning in the Kavanaugh hearing was almost comical. She set up a line of questioning on whether Justice Kavanaugh had ever discussed the Mueller investigation with “anyone”. She then drilled down and asked if he ever discussed it with anyone at Kasowitz, Benson & Torres law firm, the firm of Pres. Trump’s personal attorney. She warned him to “Be sure about your answer.” She spent six minutes trying to get an answer while refusing to offer up any clarification on who she might be referring to, as if Judge Kavanaugh had some obligation to walk into her “perjury trap” with a blind answer and not knowing if she had an ace up her sleeve. She had no payoff to her questions when he was unwilling to answer her “in the dark” — as if she hadn’t planned anything if she didn’t get the answer she was expecting.
The second day Justice Kavanaugh was able to tell her that after reviewing the Kasowitz’s firm roster of attorneys, he knew one person there but had never spoken to that person about Mueller.
That was it. She had nothing to respond with. All her suggestions to the media that Justice Kavanaugh was hiding something went up in a puff of smoke. Her lack of chops as a lawyer was laid bare for all to see.
The lack of serious legal talent among the Democrats on the Judiciary Committee almost guarantees that at least two or more of them will feel the irresistible compulsion to attack Judge Barrett as a Catholic anti-abortion, pro-gun ideologue who would sound the death knell for Roe v. Wade, and wall-to-wall press coverage of the spectacle will be assured.
I’m not sure Judge Barrett is the best selection if your only criteria is who is the best conservative that could be nominated. But as a matter of electoral politics, I see what she represents as a huge bonus for President Trump on November 3 in the places this election will be won. She’s the mother of five biological children, and she and her husband have adopted two other children from Haiti. As such, she is the antithesis of college-educated single and childless females at the heart of the Democrat coalition who overwhelmingly oppose Pres. Trump. So what? He’s not winning their votes no matter what he does.
But at the same time, I believe Judge Barrett reflects in many ways the “highest best” version of how millions of married wives and mothers see themselves and their role in society. These suburban moms have leaked away from Pres. Trump over the past four years. Watching the Democrats in the Committee denigrate Judge Barrett’s accomplishments and her beliefs will work to the benefit of the GOP on election day.