A strange explanation for Brett Kavanaugh’s ascension to the Supreme Court emerged soon after the Senate confirmed him. Kavanaugh, the argument goes, didn’t get through because Republicans had the votes; he got through because Democrats weren’t tough enough to stop him.

Very smart piece by @harrispolitico on the Dems’ dilemma: how do you confront an utterly ruthless, unscrupulous opponent without become ruthless and unscrupulous yourself?



Democrats Fear They’re the Wet Rag Party https://t.co/QrL8EMQIST via @politicomag — Paul Begala (@PaulBegala) October 7, 2018

How the Democrats got outplayed on Kavanaugh | By Julian Zelizer via @CNNOpinion https://t.co/DDeb334HSc pic.twitter.com/HkG8tUCwVP — CNN (@CNN) October 6, 2018

This sense that maybe Democrats just didn’t fight hard enough is driven by a mix of understandable progressive frustration and equally understandable braggadocio from Senate Majority Leader Mitch McConnell, who’s running around talking about how he’s “stronger than mule piss” (which I guess is strong). But none of this is true.

The Republican and Democratic parties really are different in important ways, but one way in which they are not different is that when it comes to congressional votes, Republicans win when they have the numbers, and Democrats win when they have the numbers.

Democrats didn’t want the Senate to confirm Kavanaugh, but the Senate did because most senators are Republicans and a majority of senators acting in concert can confirm a Supreme Court justice.

The only genuinely vulnerable Senate Republican in the 2018 cycle, Nevada’s Dean Heller, decided he didn’t care and never wavered in his support for Kavanaugh. Retiring Arizona Sen. Jeff Flake clearly had some doubts about the process but ultimately swallowed them. And Maine’s Susan Collins seems to have sincerely persuaded herself that a former Anthony Kennedy clerk like Kavanaugh would be a better safeguard of Collins-style centrist views on social issues than any conceivable alternative Donald Trump might appoint.

So Republicans confirmed him because they wanted to confirm him and they had the votes to do so.

Democrats didn’t just sit back and do nothing. They had the opportunity to do what an opposition party can do: make an argument to the public that the majority’s ideas were wrong and bad. And as best as we can tell, they succeeded — Kavanaugh was the least popular nominee on record, even less popular than failed nominees Robert Bork and Harriet Miers.

But negative polling didn’t persuade Republicans in Congress or the White House to pick a new nominee. Instead, McConnell rounded up the votes he needed and brought the question to the floor. Democratic toughness wouldn’t have changed a thing.

When Republicans were weak

At the end of the day, the belief that getting two Supreme Court nominees confirmed reflects some kind of peculiar legislative genius on the part of McConnell doesn’t stand up to any kind of scrutiny. After all, Barack Obama and Harry Reid (the former Senate majority leader) also got two Supreme Court justices confirmed. So did George W. Bush and Bill Frist. So did Bill Clinton and George Mitchell. That’s just what happens.

It’s true that it takes a special kind of guts to press ahead with a nominee as unpopular as Kavanaugh.

But it’d be weird to argue that Obama and the Democrats showed a lack of political skill in managing to select Sonia Sotomayor and Elena Kagan, two well-liked and scandal-free Supreme Court nominees. Republican sloppiness and poor vetting aren’t the same as effectiveness.

Meanwhile, during that same period of time, Democrats actually seemed extremely ruthless and effective in getting laws passed while Republicans were curiously poor at stopping them. Democrats crafted a vast expansion of federal health care spending, raised taxes on corporations and the rich, and nationalized the student loan industry — and that was just in one bill.

Separate legislation completely overhauled federal financial regulation. They passed the American Recovery and Reinvestment Act (“the stimulus”), plus a couple of extra smaller stimulus bills and then a couple more during the lame-duck period. They repealed “don’t ask, don’t tell,” ratified a landmark arms control treaty, passed federal hate crimes legislation, and reformed and expanded the federal school lunch program.

Congress for the first time allowed the Food and Drug Administration to regulate tobacco products, forced new disclosure on credit card companies, established a small national public service initiative, passed the biggest public lands bill in generations, expanded the Children’s Health Insurance Program, made it easier for plaintiffs to pursue pay discrimination claims, and even passed some kind of shark conservation law.

This is actually a lot more than Republicans have gotten done in 2017–’18. You could chalk it up to Democrats being more ruthless, though I think it more likely shows that Democrats are simply more interested in policy activism. More to the point, Democrats had bigger congressional majorities, so they could get more done. Vote counts matter.

Weird stuff has important consequences

Supreme Court justices normally time their retirements strategically so as to ensure that a president they like can appoint a successor that they like.

Consequently, at no point during the Obama presidency did it seem in any way likely that he would be able to appoint a replacement for Supreme Court Justice Antonin Scalia. Of course, though people can attempt to time their retirements strategically, human beings don’t get to choose when we die, and Scalia ended up — contrary to his intentions — dying when a Democratic president was in office.

Had Scalia died during the six-year period when Harry Reid was majority leader, Obama would have appointed his successor, and we would add “created the first progressive majority on the Supreme Court since the 1960s” to his résumé. Had Scalia lived through the 2016 election, he would have retired with Trump in office, and the process of replacing him with Neil Gorsuch would have been a normal SCOTUS succession rather than a Mitch McConnell masterstroke.

Meanwhile, in a deep sense, the foundation stone of the conservative movement’s grip on the Supreme Court is that poor health forced Thurgood Marshall to resign in October 1991, allowing H.W. Bush to replace him with Clarence Thomas. Had Marshall’s health held up for another year, he would’ve retired right around Election Day 1992 and Senate Democrats surely would have held the seat open for Bill Clinton to fill in 1993.

With five liberals on the Court in the 1990s, the new anti-regulatory jurisprudence that conservatives launched with Lopez v. United States never would have gotten off the ground, and the entire theory that the Republican Party and the Federalist Society have a superior judicial strategy would seem absurd.

That’s not to deny that McConnell is a shrewd legislative tactician — he’s an experienced politician and legislative leader, and he’s good at his job. It’s just to emphasize that in many ways, circumstances make the man.

Had the 2016 election broken slightly differently, after all, the blockage on Merrick Garland might have ended up looking like a fiasco that ultimately allowed President Hillary Clinton to swap him out in favor of a younger and more left-wing justice.

Democrats should be smart, not fight dirty

The current vogue for rhetoric about “fighting dirty” is dangerous because it risks further destabilizing the political system but also because it risks discrediting ideas that are perfectly defensible on the merits.

Statehood for the District of Columbia, for example, is a completely reasonable idea that Republicans have been blocking because they are “fighting dirty” but are denying fair representation rights to hundreds of thousands of people. Democrats really should push this idea if they have the chance, but they should do it because it’s the right thing to do, not because they need to be ruthless. Similarly, if a fair referendum indicates that the people of Puerto Rico want to be a state, there is no reason to deny them their aspiration — and certainly no reason for advocates of the idea to characterize it as a form of ruthlessness.

More broadly, the biggest thing that would have left Democrats in better political shape over the past 10 years would have been a more robust recovery from the Great Recession of 2008–’09.

Had the United States experienced the kind of rapid bounce-back growth that occurred in the first terms of Franklin Roosevelt and Ronald Reagan, Democrats would have enjoyed a more favorable electoral position in 2010 and 2012, would have been able to enact more ambitious legislation, and could have reaped structural benefits from doing so.

But, of course, good economic management isn’t ruthlessness or fighting dirty. It’s what a governing party is supposed to deliver. It’s less emotionally satisfying to acknowledge that Obama’s economic recovery policies were only so-so in their efficacy when Democrats and the country both needed amazing economic recovery policies than to fume about the perfidy of the GOP and vow to be more ruthless next time. But the best strategy for governing is simply to try to govern more effectively while acknowledging that holding office at the right time is what lets you fill Supreme Court seats.