Casey made it clear he would oppose any selection by the president, calling it “outrageous that President Trump will nominate from a list of just 25 dictated to him” by the conservative Heritage Foundation.
That, Casey said, is “a corrupt bargain.”
The list, which was first unveiled during the 2016 campaign, is no secret. In fact, the Heritage Foundation on its website takes credit for the influence one of its experts, John Malcolm, had on then-candidate Trump’s potential nominees to the court.
To say that the Foundation dictated the list is not strictly correct. The equally conservative Federalist Society also played a role.
More important still was the role played by campaign lawyer (and now White House counsel) Donald McGahn, who has been the curator of the list, which has expanded from 11 to 25. He was a chosen advisor to Trump.
Already one of the list men, Neil Gorsuch, has been named to the court by Trump. Brett Kavanaugh, nominated by Trump Monday to succeed the retiring Justice Anthony Kennedy, would be the second.
It is no surprise that Democrats are not fans of the list, being composed of conservative jurists whose addition to the court would undoubtedly shift its balance solidly toward the right, possibly for decades: Kavanaugh is 53, Gorsuch is 50. Not counting Kennedy, the other justices range in age from 58 (Elena Kagan) to 85 (Ruth Bader Ginsburg).
Clearly a great deal is at stake for both parties.
Democrats continue to seethe — justifiably — over the antics of 2016, when conservative associate Justice Antonin Scalia’s death left a vacancy and the Republican-led Senate refused to vote on President Barack Obama’s nominee, Merrick Garland, during Obama’s last year in office.
This was a classic power move. There was more than adequate time to hold the vote, but Republicans knew an additional Democratic justice would shift the court farther to the left, and there was no way they were going to let that happen.
In these grossly partisan times, it’s worth asking whether Democrats would have done the same in 2016 had their positions been reversed. We will never know.
Forget for the moment how a Democratically controlled Senate confirmed Reagan-nominee Kennedy himself to the court in 1988, also an election year. That was a different time.
Nevertheless, Trump nominee Gorsuch was confirmed by 54–45 last year with three Red State Democrats joining Republicans in supporting him.
What is clear is that Kavanaugh’s confirmation process in a bitter midterm election year is going to be a bloody partisan fight. What is also clear is that he is almost certain to take the seat Trump intends for him.
Against that backdrop, Casey’s stance Monday is not surprising, and certainly not going to do him any harm among true believers on the left.
What such a move also is sure to do is galvanize many who did vote for Trump — people who knew of the candidate’s list and obviously approved of it and of him.
That was where the real bargain was struck.
The question is how dismissing Trump’s choice before it was even revealed will play with the moderates and swing voters whom Democrats need so desperately to win back.