The big two lessons of Brett Kavanaugh’s nomination and confirmation are that U.S. politics right now is party politics – and that the Republican Party has fully absorbed the style and principles of Newt Gingrich, the tea party, and other influences that tell it to never compromise and always exploit all short-term advantages as much as possible.
It’s impossible to understand the Kavanaugh fight without understanding that politics goes through the parties. That’s true on a personal level: Kavanaugh was personally close to and had worked with many prominent Republicans. The key ones were White House Counsel Don McGahn, who probably had more direct influence on selecting him than anyone else, and George W. Bush, who reportedly worked the phones hard to get him confirmed, with a special emphasis on talking with Susan Collins. Parties are (among other things) networks of individual partisans, and that means that within specialized areas – such as the top lawyers and the politicians who work with them – strong personal relationships develop. That helps a lot when things go wrong.
Parties aren’t just personal, however. They are also coalitions of interest groups and reflect long-standing arrangements involving settled policy preferences, and even more importantly in this case, temporarily settled agreements about which groups the party will defer to in various policy areas.
Politicians may not be given explicit orders from a single party boss sitting at the top of an organization chart that they must go along, but they clearly get the message. That explains why Democrats, including several up for election in Republican states, almost unanimously opposed Kavanaugh (and the only exception, West Virginia’s Joe Manchin, was widely thought to be an available “no” vote if needed).
Precisely because feminists and other groups focused on social issues have successfully become far more central to Democratic politics, especially when it comes to the judiciary, I suspect that the 48-to-1 vote against Kavanaugh among Democrats differed from 1991, when 11 Democrats voted for Clarence Thomas.
On the Republican side, meanwhile, things are the same as with the Democrats, except more formalized with the role of the Federalist Society as the arbiter and protector of Republican orthodoxy in judicial selections. Indeed: In terms of policy, the key event in the presidential nomination battle in 2016 was Donald Trump’s willingness to commit to cede the presidential power of appointment in judicial matters to regular Republicans, ensuring that his selection would be very conservative. And senators were equally willing to go along. In fact, the only defection, Alaska’s Lisa Murkowski, was a party story too. Murkowski’s ties to the party are unusually weak because she was defeated for re-nomination in 2010, only to come back and win the general election as a write-in candidate. As a result, she probably has more independence from her party than any other senator – even the nominally independent Bernie Sanders and Angus King.
If Kavanaugh was a party story, then how it played out was mostly about the particular kind of party Republicans have become.
In terms of policy, it was clear from the start that Anthony Kennedy would be replaced by an extremely conservative justice. Even that was notable. Barack Obama and Bill Clinton settled for relatively mainstream liberals in their Supreme Court nominations who were confirmed. George W. Bush and Donald Trump have nominated people from the most conservative edge of the conservative mainstream.
Kavanaugh, however, isn’t just ideologically a hard-liner; he also has a long history of strong partisanship. That’s why his nomination to the D.C. Circuit Court was bitterly opposed by Democrats when George W. Bush was president. Selecting Kavanaugh wasn’t just maximizing the conservative ideological advantage on the court; it was a deliberate poke in the eye to the minority party – and that from a president who won narrowly and failed to win a popular vote plurality, and whose party had the narrowest Senate majority possible.
Faced with a Republican majority in the Senate in 2016, Obama sought to compromise – nominating an older moderate liberal, Merrick Garland. Republicans didn’t accept that compromise, and didn’t seek to negotiate; they simply closed ranks and refused to consider any Obama selection. During the Trump presidency, they’ve treated the narrowest possible electoral victories as an invitation to select exactly who they would have chosen if Trump had won in a landslide and brought 60 senators with him. And even when Kavanaugh turned out to be unpopular – and then even when he faced serious allegations of sexual assault – they never backed down.
Kavanaugh’s elevation is a huge victory for that kind of take-no-prisoners approach to politics, just as the elevation of Neil Gorsuch was last year. Whether it’s a good long-term strategy for the party is harder to say at this point. We’ll know more after the 2018 and 2020 elections. We’ll know more when we see how radical the court is really going to be, and how the rest of the political system will react. When it comes to policy, Republican radicalism has been a loser on health care so far, but a winner on taxes.
And regardless of how it works as a party strategy, radicalism – refusing to compromise – has been terrible for the health of democracy in the United States.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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