It may be counter-intuitive, but liberals may benefit by seeing Judge Brett Kavanaugh seated on the Supreme Court. Let’s talk strategy for a minute.
First, as Akhil Reed Amar pointed out, Judge Kavanaugh is a well-respected jurist, and as several analysts have pointed out, his appointment will not have a major impact on the current ideological bent of the Court. Given that Democrats have very little leverage to stop or even delay this appointment, barring a miracle, Judge Kavanaugh will be Justice Kavanaugh before the November election.
Second, as has been repeatedly pointed out, especially in the mid-term elections, turnout is everything. The party with the most enthused voters is likely to prevail. Recently, the Democrats seemed to be benefiting from voter enthusiasm, as is demonstrated by the results of the state election in Virginia and special elections in Alabama and Pennsylvania. However, recent analysis seems to indicate that the attacks on President Trump are increasing enthusiasm among his most passionate supporters. Furthermore, prior to this year, Republicans tended to be the beneficiaries of greater voter enthusiasm in mid-term elections, largely driven by the religious ideological fervor pushing for a more socially conservative Supreme Court. Indeed, the relative voter enthusiasm of Republicans over Democrats regarding court appointments has been cited as a reason for the Democrats poor performance in the last Presidential election. As a result, if the Democrats wish to regain any power in the federal government, the only way to do so is to promote greater enthusiasm among their voters than among Republican voters in November’s mid-term election.
Third, the most ardent, socially conservative supporters of President Trump are unhappy with this choice. Fox and Friends called his appointment a victory of “the Swamp.” The President’s choice between Judge Kavanaugh and Judge Amy Coney Barrett has been characterized as a decision between the establishment and social conservatives. Despite generally impeccable conservative credentials, Judge Kavanaugh was not viewed as fiercely devoted to the cause as Judge Barrett. As a result, the most passionate social conservatives, the very base Trump needs to turn out in November, will be disappointed by this appointment.
Finally, this Court is truly a conservative court for the foreseeable future. The greater risk to Democrats is that we do not capture the Senate, and that one of the more liberal Justices either retires or passes. If that happens, what had been a close split on the Court will become an insurmountable 6–3 split for the next generation. That must not happen.
The upshot of all this is as follows. Trump’s strongest supporters will be less motivated by Kavanaugh’s appointment since those socially conservative voters will not need to turn out to protect the right-wing nature of the Court as they did in 2016, and they will not feel the gratitude to President Trump that a Judge Barrett appointment would have generated. Similarly, Democrats will be more motivated because they will finally understand how their failure to turn out for elections, and voting for protest candidates has real world consequences upon the courts. Thus, in one fell swoop, President Trump and his Congressional supporters will have irreversibly shifted the enthusiasm gap to benefit the Democrats. Given our current desperate straits, we should not complain.