With the confirmation of Brett Kavanaugh, the Supreme Court has a solidly conservative majority for the first time since the New Deal. Just how conservative this new majority is remains to be seen: Chief Justice John Roberts disappointed the Republican right when he voted to uphold the legality of Obamacare in 2012. But if Roberts is no Antonin Scalia, still the paragon of what most conservatives look for in a justice, he is no Anthony Kennedy, either. And with two of the four liberal justices — Ginsburg and Breyer — in their 80s, the prospect...
With the confirmation of Brett Kavanaugh, the Supreme Court has a solidly conservative majority for the first time since the New Deal. Just how conservative this new majority is remains to be seen: Chief Justice John Roberts disappointed the Republican right when he voted to uphold the legality of Obamacare in 2012. But if Roberts is no Antonin Scalia, still the paragon of what most conservatives look for in a justice, he is no Anthony Kennedy, either. And with two of the four liberal justices — Ginsburg and Breyer — in their 80s, the prospect of a 6-3 or even 7-2 conservative majority is not remote. A second Trump term would almost certainly make a reality of it.
Republican justices have been known to ‘evolve’ in the past, drifting leftward as they mellow with age or court the favour of liberal opinion. But the evolvers were the product of a different time, when conservative judicial philosophy was less well-defined and wasn’t safeguarded by an institution like the Federalist Society. An Anthony Kennedy or a David Souter never had the commitments that the Republicans on the court now have. The amount of ‘evolution’ that would be needed to make a liberal out of any of the current Republicans would be much greater than anything we’ve seen before. It’s not impossible, but it’s unlikely.
No wonder, then, that Kavanaugh’s confirmation wound up being as bitterly contested as it was. This was not a man who had been accused from the outset — as a result of the original FBI background investigation, for example — of having been a sexual abuser. Christine Blasey Ford’s allegation only came to light when someone leaked her story without her permission, forcing her to come forward. The leaker presumably wasn’t a conservative or Republican; only a few Democrats and the Washington Post had access to her claims. It’s hard not to suspect an ideological or partisan motive when a leaker protected by anonymity decides to throw a woman into the line of fire. The leaker got to harm Kavanaugh without incurring any personal cost.
Ford was reluctant to go public because she knew her account would be challenged. To get around her inconsistencies and the fact that none of the witnesses she named as being present corroborated her story, liberals resorted to emotional extortion: ‘believe women’; and if you don’t, then you’re a rape apologist. (With Kavanaugh’s confirmation, actress Molly Ringwald announced on Twitter, ‘It’s no longer the Republican Party to me. It’s the Rape Party.’) The extortion attempt failed thanks in part to ‘creepy porn lawyer’ Michael Avenatti, who turned up with an utterly unbelievable client who claimed that as a prep-school student Kavanaugh had participated in gang rapes. If ‘believe women’ meant believe an accuser even without evidence beyond her word, then Avenatti’s client had to be believed, too — but that stretched credulity beyond the breaking point. And if you didn’t have to believe her without evidence, then maybe you didn’t have to believe Ford on her word alone, either. Avenatti came off looking like the sleazy liability to his own team that he is, but he was hardly the only one to come out with highly dubious claims in an attempt to sink Kavanaugh’s nomination by simply piling more innuendo and accusation on top of Ford’s story. The New Yorker got in on the act, too, with a woman, Deborah Ramirez, who accused Kavanaugh of exposing himself to her while they were students at Yale. She too had trouble finding anyone else to vouch for her account, however, of an incident she claimed was witnessed by many. It even seemed by her own telling that she was not entirely sure whether Kavanaugh was the perpetrator. If she wasn’t sure and no one else recalled anything of the sort, then what exactly did her story add?
Another Republican president might have lost his nerve amid all this. More than one elite conservative pundit called on Trump to ditch Kavanaugh and appoint Amy Coney Barrett instead. She was a woman, you see, so she’d be immune to criticism. Except, of course, she wouldn’t have been: the very appearance of anti-abortion commitment that made her appealing to many elite Christian conservatives would have made her unacceptable to Susan Collins, the pivotal Republican vote in the Senate. And if Barrett wasn’t vulnerable to sexual allegations, something else would have had to serve. Plagiarism, maybe? Finances? Did she ever meet a Russian?
More to the point, abandoning Kavanaugh would have been a sign of weakness, demoralising to the Republican base — which firmly stood by Kavanaugh — and an intoxicating taste of blood to liberals, who would know that if they could win this first fight, the next round would be worth fighting too. Instead, by seeing Kavanaugh through to confirmation, Trump has showed Republicans that they can win so long as they don’t pre-emptively surrender. His own campaign in 2016 had been fought on the same premise. Republicans had been in a habit of apologising for themselves since at least the time George W. Bush ran on ‘compassionate conservatism’ — what exactly was he implying about everyone else’s conservatism? — in 2000, when he became president only by grace of the Republican majority on the Supreme Court. (Which is fair enough: the 2000 election genuinely was a virtual tie in the decisive state of Florida.) Mitt Romney cringed when he was called out for ‘self-deportation’ and ‘binders full of women,’ even though the former was a humane and effective immigration policy (one much in evidence during the Obama administration, in fact) and the latter was a ill-phrased but sincere promise to include many women in his administration.
But that was another problem with the ‘draft Barrett’ idea: although the conservative writers pushing it liked her for her presumed views on abortion and thought of themselves as being clever political strategists for suggesting a woman, in fact they were playing to the very style of politics that the centre-left dominates — that is, they were conceding the narrative that Republicans are bad for women and only a woman could negate the GOP’s justly-acquired bad reputation among women. This didn’t work when John McCain put Sarah Palin on his presidential ticket. It wouldn’t have worked for Amy Coney Barrett, either — though she may indeed make a fine justice one day. Just as the politics of ‘compassion’ doesn’t work for conservatives (as opposed to the politics of jobs and American industry), the politics of ‘see, we can too find women who like us!’ concedes everything to conservatism’s enemies. It doth protest too much.
The protests liberals whipped up against Kavanaugh this weekend, on the other hand, revealed too much about their own weakness. Washington, D.C. is a majority Democratic city with a black majority. But the Democratic voters out there yelling about Kavanaugh were as white as any country club gathering of Republicans. They looked like a line of Starbucks patrons — Caucasian, professional, largely millennial, with earth tones and earnest expressions aplenty. Men and women wore the same fashionable glasses and more or less the same clothes. It was a Pumpkin Spice Riot.
Where were the black Democrats? Where were the non-yuppies? Hillary Clinton could have asked the same questions on November 9, 2016, after she failed to get them to show up for her the way they’d showed up for Barack Obama. That election, like the Kavanaugh protest, showed that white liberalism has a problem: it’s too liberal for a majority of whites, yet too distant from the concerns of most non-whites. But its proponents enjoy so much cultural prestige as liberals and so much self-confidence as part of a historic white majority — however much they may disdain such a thing — that they failed to recognise alienated they are from everyone else. They see themselves as the natural moral arbiters of society. But nobody else sees them that way. Nothing says that a multiracial or multicultural society has to be politically centre-left, after all. India has a right-wing nationalist and religious fundamentalist government. Brazil looks set to elect a right-wing president in a runoff later this month. Yet white American liberals cling to the belief that demographic magic will rescue them from the insufficiency of their ideology appeal. White liberalism is in fact in more trouble in this country than conservatism is. The only places where white liberals values matter are in elite cultural institutions — which is why getting Kevin Williamson fired from The Atlantic is a lot easier than getting senators to vote against confirming Kavanaugh. The Democrats had only one defection in the Kavanaugh vote, as it happens, but it was enough to avoid what would otherwise have been a 49-49 tie: Joe Manchin, up for re-election this year in the reddest state with a Democratic senator. Liberals swore retribution — supporting Kavanaugh might just have cost him the vote of every single New Yorker subscriber in West Virginia.
That’s white liberalism’s problem in a nutshell. What voters it has are concentrated in places where their votes aren’t needed. They’re not a terribly terrifying bloc in West Virginia or even Maine, where Susan Collins can be confident of weathering the storm in 2020, in a state where a Republican as outrageous as Paul LePage is, after all, governor. Even in Maine, white liberalism is dying.
Conservatism under Trump, on the other hand, is flourishing, winning big victories first on taxes and now with Kavanaugh. NeverTrumpers have never been more embarrassed. Trump and those who come after him still have to find a way to win over non-whites, but the same ingenuity that led Trump to go after working-class voters can be applied to building other unexpected coalitions. Conservatism may remain overwhelmingly white for now, but at least conservatives are aware of that limitation. White liberals, on the other hand, continue to think they speak for more than just themselves.
Ironically, what conservatives have to fear most in the middle distance — not in the midterms, which will be tough but not as tough as they would have been if Kavanaugh had been defeated, but in years to come — is the blowback of success. Conservatism has long derived populist energy from its opposition to a liberal Supreme Court. Not only will that devil not be around to rally the troops against in the future, if all goes according to the Federalist Society’s hopes, but in American politics there is often a popular backlash against the ideological tilt of the high court. Before the New Deal, the court’s conservative character often served as a spur to left-wing popular organising, and there’s a tendency for the court to lag behind the times of the country’s political disposition, partly for institutional reasons, but partly as well because the court gives rise to its own popular nemesis. Abraham Lincoln and Andrew Jackson found the court something they could push against, and Federalists dominated the bench when Thomas Jefferson and his political descendents swept to power.
So even with the Supreme Court solidly in hand, conservatives are not guaranteed long-term success. But their prospects are better than those of white liberals, who habitually overestimate their importance to American politics and society.