When news of the passing of Supreme Court Justice Ruth Bader Ginsburg came down last month and President Trump made clear he intended to fill the vacancy, it also seemed clear Democrats would stop at nothing to stop it. When Trump nominated social conservative favorite Amy Coney Barrett such speculation went into overdrive with visions of the contentious Brett Kavanaugh hearings dancing in pundits’ heads. At the time I assumed this was all correct, but I am starting to have doubts.
It is certainly true that in some circles we have seen attacks on Barrett, her faith, her positions on abortion, and other issues. We had already seen three years ago in Barrett’s hearing for the circuit court that Sen. Diane Feinstein for one had no issue calling out the Catholic dogma that lives deep within Barrett. But when and if the hearings begin on October 12, do not be shocked if Democrats take a kinder and gentler tone, or if they just sit out the hearings all together.
The big difference between now and Kavanaugh is that the Democrats have no angle here. The biggest reason for this is that the current timeline offers them little chance of actually stopping the nomination and playing for more time. Recall that the Democrats’ plan during Kavanaugh was to drag out that process long enough that by the time there was a replacement nominee the Democrats could win back the Senate in the 2018 midterm. That is not going to happen here. Barring something bizarre, Barrett will be confirmed by the senate.
Another key difference is that Kavanaugh was caught up in the huge cultural phenomenon of the Me Too movement. 2018 was still a time when even the whiff of sexual misconduct would send powerful men into retirement and hiding. It was reasonable to assume Kavanaugh would not fight back, until he did. Not only that, he fought back effectively and won. This time around Democrats don’t even have a fabricated scandal, at least not yet, and there are real dangers in trying to manufacture one.
This is all about reward vs. risk. Let’s start with the former, what could Democrats gain with nasty hearings that call into question Barrett’s faith, or the adoption of her children from Haiti, or whatever else Democrats can pull out of their hat? It could fire up their base. That’s really about it. As noted above, they aren’t going to stop the nomination so this is purely political. And in an election year where their base already hates Donald Trump more than some guy in South Philly hates the Cowboys, rallying the base seems a bit pointless.
As to the risk, Amy Coney Barrett is not Brett Kavanaugh. The latter was out of central casting for a figure hated by progressives. He was like a grown up version Nicholas Sandmann, a punchable face if you will. Into the cup of Kavanaugh could be poured all the poison about white male privilege and prep school, and he likes beer! Barrett is a mother of 7, by all accounts a lovely person, and she holds herself with grace. Attempts to smear her could backfire spectacularly. The very white, college-educated, moderate, suburban women who Democrats are counting on might not like seeing attacks on a woman they could run into at the gym or the swap meet.
The best play for Senate Democrats and the Biden campaign right now would be to simply skip the hearings. It also makes the most logical sense based on their central argument. Their position is that filling this seat at all before the election and potential transition of power is illegitimate. They wrongly think that the deck has been unfairly stacked against them. This being the case, why sit down at the dealer’s table at all?
Conservative media has also done a good job protecting Barrett. The Kavanaugh craziness came out of left field, or at least appeared to, but this time the right is ready and expecting outrageous attacks on the nominee’s faith and her past. In almost perfect unison conservatives have warned that progressives will dirty themselves with attacks on Barrett, a trap has been laid. There is good reason to believe that Democrats will refuse to walk into it.
The bottom line is that Democrats can’t stop this nomination from going through. It will be a will be a win for Trump. The question is how big a win will it be? That depends entirely on how much skin Democrats put in the game. I suggest they put in none. In the coming weeks look for Democrats to continue slamming Trump for his choice to fill the seat, but do not be surprised if Barrett basically gets a pass. Going after her would very likely hurt Democrats’ chances next month far more than they would help them. And that is really the only thing that matters.
David Marcus is the Federalist’s New York Correspondent. Follow him on Twitter, @BlueBoxDave.