Are The Democrats Really Resisting?

The #Resistance is purportedly a movement to fight against the agenda of Donald Trump and the Republican dominated federal government. The Democratic Party, the sole opposition party in Congress, is supposed to lead the effort to deny Trump as much of his agenda as possible. However, on October 6th, 2018, the Senate voted to confirm the nomination of Brett Kavanaugh to the Supreme Court with 50 voting in favor, 48 against. In the Senate, there are 47 Democrats, 2 independents who caucus with the Democratic Party (Senators Angus King and Bernie Sanders), and 51 Republicans. Republican Steve Daines, who supports Kavanaugh, did not attend the vote and Lisa Murkowski (R-Alaska) voted “present” (neither a yes or no) even though she is against Kavanaugh. A spokesperson for Senate Majority Leader Mitch McConnell explained, “When a senator is necessarily absent (for example, attending their daughter’s wedding), they can ‘pair’ with another senator who is voting the opposite way.” Therefore, there were 49 Democrats (including Sanders and King) and 49 Republicans that voted either to affirm nor reject Kavanaugh’s nomination. However, the vote tally was 50-48 because Democratic Senator Joe Manchin voted in favor on Brett Kavanaugh. While a 49-49 tie would have let Vice President Pence break the tie, and he would’ve voted to affirm Kavanaugh, the Democrats still failed to unify in resistance to Kavanaugh. In fact, Joe Manchin had voted in favor of Kavanaugh for the second time. Before the Senate held the official confirmation vote, Joe Manchin voted in favor of letting Brett Kavanaugh advance through a cloture vote (a fast track vote). The Cloture vote was 51-49, with Republican Lisa Murkowski voting against Kavanaugh and Joe Manchin in favor.

In his written statement justifying his votes, Manchin explained, “I have found Judge Kavanaugh to be a qualified jurist who will follow the Constitution and determine cases based on the legal findings before him… Judge Kavanaugh assured me personally that he would consider the human impacts and approach any decision with surgical precision to avoid unintended consequences.” First and foremost, the personal assurance, especially from someone embedded within the Washington political elite, means nothing. Moreover, almost no human being who would want the job of Supreme Court Justice would openly say that they would not attempt to avoid unintended consequences. If Manchin, in order to form his opinion, was simply wondering if Kavanaugh would directly admit to bias and recklessness, then he seriously lacks skills regarding social judgement. However, the more important piece of Manchin’s justification is claiming Kavanaugh “will follow the Constitution and determine cases based on the legal findings before him.” The only means of predicting how a judge will vote in the future, is to closely study their previous rulings. Moreover, on January 21, 2016, the District of Columbia Circuit of the United States Court of Appeals decided in favor of the CIA with a 2-1 decision in Morley v. CIA. Morley had “sought the records of a deceased undercover CIA officer, George Joannides” because he “knew Joannides was working undercover out of Miami in 1963 and had some knowledge about events leading up to the assassination of John F. Kennedy [and] Joannides had also served as the agency’s liaison to congressional investigators who reopened the JFK investigation in 1978.” However, the CIA did not send nearly enough documents to fulfill Morley’s request, and so he filed a lawsuit and won. However, Morley sought more documents but was denied by a three judge panel, including Kavanaugh, due to the ruling that he lacked “merit.” Morley remained in a court battle over the next few years due to the fact that “case law around the FOIA [Freedom of Information Act] holds that when a plaintiff “substantially prevails” over the government, they are entitled to have their court costs paid by the defendant.” The CIA fought back and won the initial case, but Morley appealed again and the same three judge panel sent the case back with the same result, CIA victory, yet Morley appealed again. In a split decision, the three judge panel ruled denied Morley. However, the dissenting voice, Judge Henderson, pointed out:

“But for the district court’s repeated misapplication of FOIA precedent, this case could have ended as early as 2006. If it had been correctly decided the first time… it distorts our settled four factor test for awarding attorney fees under FOIA and replaces it with a single-factor reasonableness inquiry of its own design… in Morley VII, we vacated and remanded the district court order denying fees so that it could reconsider its public benefit analysis in light of Davy IV… In other words, we [already] held that Morley satisfied the public-benefit factor in this case.”

While Henderson delves into greater detail, her dissention, in comparison to the majority decision, proves that Morley was correct in asking for legal costs to be paid due to the legal precedence of previous decisions. Therefore, Kavanaugh failed to “determine cases based on the legal findings before him” contrary to Manchin’s claims. However, not a single national Democrat either fought Kavanaugh’s nomination based on his flawed legal record or reprimanded and rebutted Manchin.

The entire premise of Democratic premise centered around the sexual assault allegations and a potential FBI investigation. In an interview on October 10th, Manchin addressed the sexual assault allegations by Dr. Ford against Kavanaugh, “I read every word I could (of the FBI Report), I couldn’t even find where those two people (Kavanaugh and Dr. Christine Blasey-Ford) were in the same place at the same time from anybody who was spoken to… I truly believe something very traumatic happened to Dr. Blasey-Ford, I just couldn’t say it was Judge Kavanaugh because nothing showed that.” With the Republicans in control of the Senate and White House, the limits of any investigation would be set by Republican leadership. Moreover, the FBI can only investigate based off a fact-finding request--with the scope defined--filed by the Senate. As a result, Senate Democrats entirely relied on unproven allegations that would be “investigated” in a limited manner with terms set by the very same people wanting to confirm Kavanaugh in the first place. Contextually, the ability for Manchin to state the lack of clear evidence was immense. With several Republicans, namely Lisa Murkowski and Susan Collins, and Manchin on the fence as the nominating process took place, the Democrats had the opportunity to resist Kavanaugh by slamming his record in addition to calling for an FBI inquiry into the sexual assault allegations. In the end, the Democrats decided to pursue the course of “resistance” with the highest probability of failure.