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Why Kavanaugh Nomination Won’t (For Long) Be a Black Hole for Everything Else

August 2, 2018

In politics in 2018, nothing is easy. Nowhere is this more obvious than in the nomination of federal judge Brett Kavanaugh to fill the vacant U.S. Supreme Court seat created by Justice Anthony Kennedy’s retirement.

Democrats are gearing up for a fight and the media is predicting a protracted slog. The Hill is quick to point out that the country is split on the nomination and the statistical analysts at FiveThirtyEight note that Kavanaugh is polling at the same levels as Harriet Miers (who did not make it out of the starting gate) and Robert Bork, the distinguished jurist whose nomination died in the Senate. Good thing this process is scheduled to be over by September.

Cue the surprised looks.

Welcome back to those of you who just reread my prediction several times.

The point for health care providers with urgent issues before Congress and the agencies is that the nomination will not become a black hole into which everything else will be swallowed forever. Yes, for the next few weeks, Washington will be consumed by the nomination, including parts of the government you might think would not be distracted … but it won’t last nearly as long as you might think.

Let me explain why. Despite the rhetoric coming from some Democrats, there is simply no indication that the protracted battle predicted by the press will materialize. Other than staunch, public opposition, the Democrats simply don’t have the right procedural weapons in their arsenal.

Thanks to a precedent set by former Senate Majority Leader Harry Reid (D-NV), the filibuster is not an option. Barring any jarring revelations about Judge Kavanaugh, Democrats do not appear poised to win a straight-line vote. With several red state Senate Democrats up for re-election, Democrats might even lose a vote decisively. And with Senate Majority Leader Mitch McConnell (R-Ky.) pledging a vote by the fall, this will probably happen much sooner than some anticipate.

It is surprising to me that this has not been explored more openly. Based on all the commentary and conventional wisdom it seems that short of refusing to show up and create a quorum, there is little that opponents of Judge Kavanaugh can actually do to stop his confirmation.

In giving advice to clients, I do not take partisan positions. I take client positions. This is not meant to be stumping for Judge Kavanaugh or a condemnation of the Democrats — I can fall back on my House credentials and say this vote is above my pay grade — but rather is a simple acknowledgment of political realities.

Let me leave you with one last surprise and say that I actually draw some hope from this situation. Some of the rhetoric and vitriol from both sides is troubling, but the fact that Americans seem to genuinely care about the Supreme Court is an undeniable positive. In the long run, we must hope that the increased awareness created by this civic moment outlasts today’s partisanship.