At first, the protesters were polite. They filed quietly into the back of the hearing room, sat in the two dozen or so seats reserved for the public, and waited patiently. But then, one by one, they started yelling, and then, one by one, they were hauled away by Capitol Police. On the first day of Justice Brett Kavanaugh’s confirmation hearing, 70 people were charged with disorderly conduct.
It wasn’t any calmer outside the oak doors of the Judiciary Committee. Hundreds of anti-Kavanaugh demonstrators blocked hallways and chased senators into elevators and generally did their best to use their right to peaceably assemble to stop the Senate from fulfilling its duty – in this case, to offer advice and consent on President Trump’s second Supreme Court nominee.
Two years later, during a pandemic and just weeks ahead an election, partisan strife is even worse as Trump prepares to name a third justice.
“There won’t be a circus this time,” a senior committee aide said with a real sigh of relief now that the Senate has closed its doors to the public because of the coronavirus. “Unless,” the Republican added, “the Democratic senators put one on.”
Whoever Trump picks won’t be interrupted by protesters dressed in flowing red robes and starched white bonnets, the dystopian costume inspired by the popular “The Handmaid’s Tale.” The nominee must face Kamala Harris, the California senator who tried to knock down Kavanaugh and who is now trying to knock the GOP out of the White House as the Democratic vice presidential nominee.
First and foremost, Republicans want the nominee confirmed. But they wouldn’t mind a melee in the Judiciary Committee either. A clash between Harris and Trump’s first female nominee, they believe, would drive turnout in November — the more contentious, the better.
A prosecutor and state attorney general before entering national politics, Harris could certainly leave a dent. A bruising line of questioning between the senator and Kavanaugh over abortion rights, among other topics, didn’t derail his career. It did propel hers. She asked him to identify any laws that allowed the federal government to control the bodies of men. He couldn’t. The exchange was billed as “a breakout moment” for California’s freshman senator.
Trump World sees what’s ahead as a win-win situation, and a senior official gaming out strategy for the campaign tells RealClearPolitics that “the ball is in Democrats’ court.”
If the opposition party lays low, the official believes Joe Biden and Harris could “make the electoral impact relatively small if they go about this in a traditional manner.” This seems unlikely after Minority Leader Chuck Schumer warned that “all options are on the table,” a threat that could include impeaching Trump a second time if he is reelected or packing the court if Biden wins.
If Democrats attack with the same ferocity as they did against Kavanaugh, “if they overreact and enflame those tensions,” the official said, “I think it only comes back to bite them.” After all, at a moment when Trump finds himself underwater with suburban women, Republicans wouldn’t be shy about flooding the airwaves with ads showing Democrats bullying a female Supreme Court nominee. This would particularly apply to the vice presidential nominee. “Sen. Harris,” the official added, “is going to come across to the American people as a partisan hack.”
This was too much for a Biden ally close to Harris. "The most profoundly hackish thing that has been done in American government in generations,” the ally told RCP, was nominating a Supreme Court justice during a pandemic while trying to overturn Obamacare.
Partisan hackery, the person continued, was “selling every American out to China as the worst public health crisis in 100 years spread around like wildfire; golfing and turning Americans against each other while letting the pandemic rage -- all with no coherent strategy to beat it -- and then, in an act of hypocrisy so prodigious that it could be seen from space, enacting a disgusting power grab in the name of quadrupling down on costing millions of families their health care during that pandemic you've allowed to rage."
Trump still has to name a nominee, a decision he promised to announce on Saturday. And while Mitch McConnell has promised to bring the nomination to the floor, the majority leader has not specified if a vote will happen before or after the election.
A senior Republican aide on the Judiciary Committee was more bullish. The aide who helped confirm Kavanaugh in 2018 told RCP that the emerging confirmation timeline includes confirmation hearings in “the middle of October” followed by a floor vote shortly afterward. “We're going to do it,” the aide said. “It is going to happen.”
Both sides are preparing for a bitter fight. Republicans certainly believe they have the upper hand after confirming Justices Kavanaugh and Neil Gorsuch. That work has hardened White House resolve, and Carrie Severino of the conservative Judicial Crisis Network said the experience has prepared the administration and its Senate allies to “bring their A-game — they're going to be ready for it.” After all, everyone knows what is at stake. “This person will serve for a generation,” Severino said of the next justice.
As Republicans rouse their Senate caucus and stand up outside grassroots armies for a confirmation battle, the Trump campaign is on a parallel political track. The possibility of confirming a third Supreme Court justice has energized Trump. “This is a comfort zone for the president and our outside world. We have gone through confirmations in the past and know how to translate this conversation in a way that voters care about,” a senior campaign official said, citing the two Senate seats Republicans net-gained in the midterms. “Democrats still hadn't figured out how to turn this into electoral politics.”
A confirmation battle also potentially opens another front in the election, one that the Trump campaign sees as an opportunity to paint the opposition as extremist. The back-and-forth, the official seemed confident, would force the former vice president on the defensive: “When Sen. [Mazie] Hirono says something out of control, or Chris Murphy tweets something stupid, or Brian Schatz goes out there for his retweets — all of this is Joe Biden’s party.”
Republicans, meanwhile, have convinced themselves that nominating a woman to the Supreme Court will help their odds in November. The White House regularly highlights how Trump has entrusted women with positions of influence and power. A female justice, the official said, “gives a face to that for us — that is another way for him to show and prove it.”
If a political circus occurs -- and that seems likely -- Republicans believe that all the theatrics will play to their advantage.