The GOP’s Court of Last Resort

Sherry Bebitch Jeffe & Doug Jeffe
Sherry Bebitch Jeffe, Professor of the Practice of Public Policy Communication, Sol Price School of Public Policy, University of Southern California, and Doug Jeffe, Communications and Public Affairs Strategist

It’s ironic that the Republican establishment, which has long railed against judicial activism, is increasingly looking at the courts as the last bastion of the GOP “resistance”.

There is a logic in the determination of President Trump and the Republican leadership to make over the nation’s courts. But their dogged pursuit of Brett Kavanaugh’s nomination to the Supreme Court is likely to exact a heavy political price—win or lose.  The Trump-led alienation of women voters and millennials can only serve to dampen Republican hopes in this year’s mid-term elections. Senate Majority Leader Mitch McConnell and his cohorts seem to think that achieving a solid conservative majority on the Supreme Court is worth risking control of Congress and, perhaps, the White House in 2020.

The Kavanaugh kerfuffle is not an isolated event.  McConnell unceremoniously blocked consideration of Judge Merrick Garland, who was nominated by President Barack Obama to replace the late Justice Antonin Scalia. After Donald Trump’s inauguration, McConnell shepherded the confirmation of Judge Neil Gorsuch to fill the Scalia seat.  And since President Trump took office, McConnell and company have been fast-tracking the confirmation of a record number of conservative nominees to lower federal court judgeships.  Even if Republicans lose total control of Congress in November, they will still have succeeded in remaking the courts for decades to come.

While most of the Republican establishment remains aghast at President Trump’s antics and highly uncomfortable with his stands on trade and immigration, they have mostly fallen into line as acceptable judicial appointments march forward.  This calculation may be driven by a realization that the GOP’s days as a competitive party in the electoral arena may be numbered as demographic and cultural trends shrink the potency of the Republican base, now dominated by older white males without a college education. (And, yes, California can provide a case study of these trends, which have begun to define American politics nationally.)

Most Republican strategists already believe that retaining their majority in the House of Representatives this November is a bridge too far and are starting to worry about control of the Senate.  Even if McConnell and company hold their slim majority in November, it is likely that 2020 will present a much more favorable Senate map for Democrats.

If President Trump’s tough unfavorable poll ratings maintain, the likelihood of his holding on to the Presidency in the next election could be dicey.  It’s not inconceivable that, if the President’s ongoing attacks continue to alienate key voter groups, Trump may be the last GOP president in the White House for quite some time.  Of course, the Democrats can always shoot themselves in the foot; they have long been famous for snatching defeat from the jaws of victory, but the Republican powers-that-be can’t count on it. 

The reality may be that the nation’s politics could soon look a lot more like today’s California.   That means that conservative hopes for checking a Democratic President and Democratic Congress may very well rest with the courts.  In California, retiring Governor Jerry Brown has had the opportunity to reshape the State’s judiciary, particularly the State Supreme Court.  Neither Trumpworld nor the GOP establishment wants to see that universal Democratic imprint on governmental institutions repeated at the federal level.

In the meantime, the Kavanaugh debacle isn’t helping any of the Republican candidates in the seven or so GOP California districts that are under siege this November, as those districts go may well determine which party controls Congress Once again, look to California to portend the future direction of politics and policy in this discombobulated nation.

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