Even the most fanatical of populists understands there are some issues where elected officials are expected to adopt an independent posture and not reflect the views of The Folks. Judicial confirmations would usually fall into that category. So it’s interesting to hear some swing senators who will soon vote on the confirmation of Brett Kavanaugh to become a Supreme Court Justice act as though the first thing they want to do is take a poll.
West Virginia’s Joe Manchin is making some positive noises about Kavanaugh’s qualifications for the Court (not that anyone has suggested he is under-credentialed in anything other than perhaps empathy for women, minorities, and the poor) and his solemn obligations to give the man a good, fair hearing. But then there’s this note, reported by Axios:
I’ll be hearing from West Virginians and their opinion. And I think they have, also, a right. And that’s who I work for. They’re my boss. And we want to hear from them, too, during this process.
I can’t imagine that people in the scenic hollers and struggling small towns of West Virginia are abuzz about Kavanaugh’s views on the Chevron deference or substantive due process. But perhaps Manchin will ask them about it all anyway.
Interestingly enough, another red-state Democrat, Indiana’s Joe Donnelly, seems intent on getting into touch with Hoosier jurisprudence in a big way:
Donnelly said he will sit down with Kavanaugh, and he will review the judge’s rulings and writing in legal publications.
Donnelly also said, “I work for the people of Indiana and I want them to have a voice in this.”
Now in both cases, if Manchin and Donnelly came right out and admitted they feared (or hoped) Kavanaugh might crucially help change U.S. constitutional law on issues constituents actually cared about, like the fragile rights to an abortion or to same-sex marriage, and then solicited their views on those contingencies, it might make some sense. But it is about as sure as anything in politics that neither senator will mention such issues, in order to sidestep the culture wars as much as possible in a reelection year.
The most likely interpretation for this note of small-d democratic deference on so technical and weighty a decision is that the two Democrats are laying the groundwork for splitting with their party on Kavanaugh and attributing the heresy to public opinion back home, which in the end is likely to track support for and opposition to Donald J. Trump. I am sure both men (and also other Democrats in very red states like Heidi Heitkamp and Doug Jones) devoutly hope that Mitch McConnell firms up the votes of all 50 Republicans before they disclose their intentions, making their votes a matter of symbolic rather than concrete significance.
For senators facing voters within weeks or even days of the final reckoning on Kavanaugh, it could well be that listening to one’s constituents simply means deciding what course of action, if any, is likely to get one to reelection. So don’t be surprised if red-state Democrats who lack a robust lead in their own races decide their bosses, the people, admire Brett Kavanaugh’s approach to constitutional law too much to turn him away.