July, 2018
Washington -- Senators Manchin, Donnelly, Heitkamp, and McCaskill, if they were entertaining the notion of voting for Supreme Court nominee Brett Kavanaugh, just got a splash of cold water in the face from the estimable Jane Mayer, who suggested they might be more vulnerable for voting for Kavanaugh than voting against him.
Look what happened to Senators Dixon and Fowler, who voted for Clarence Thomas in a similar situation. They were defeated at the next election.
Moreover, surveys* of voters in the applicable red states suggest that narrow majorities would approve a Democratic senator opposing Kavanaugh so as to provide a check on presidential power. This is before such a position has even been well articulated.
If Kavanaugh's "originalism" is unmasked as contrary to Madison's and Jefferson's views of the Constitution, those majorities will increase substantially. A key element of originalism, the idea that unenumerated rights are not protected, is blind to Madison's explicit Ninth Amendment** in the Bill of Rights itself. As I suggested in the previous blog, no one has ever gone down in an election by being too closely associated with James Madison.
We Americans take our checks and balances seriously. What with the American president's questionable – some will say treasonous – performance alongside the Russian president, more and more people will want to take a step back on the Kavanaugh nomination. The nominee is well known for his position that a president should not be bothered by an investigation until his term is over. That matter could soon come before the Supreme Court.
There is also every reason for the four senators in question to wait until hearings can be held on the nomination. It is well known that Brett Kavanaugh was instrumental in providing, on behalf of Kenneth Starr, selective information to selective press during Starr's Clinton investigation. Red state voters may not be pleased to learn that this typical Washington swamp behavior is his background.
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* "The survey shows that fifty-four per cent of voters polled in these states said they would approve of a Democratic senator opposing Trump’s choice for the Supreme Court if it protected the independence of the Court as a check on Presidential power." --Jane Mayer
** Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
