The Tribune

By RICHARD COULSON

At long last, Judge Brett Kavanaugh has moved up the final notch in the US judicial hierarchy to become an Associate Justice of the Supreme Court, from obscurity through tears, rage and notoriety to uneasy success. In the rancorous confirmation debate, all but two senators voted along strict party lines.

Bahamians may well wonder what all the fuss was about. Why the non-stop TV coverage, why the daily reporting and editorial analysis in the New York Times, the Washington Post and innumerable print media across the country? Why the vitriolic charges from both sides of the political spectrum? After all, he is not a head of state, president, prime minister or a cabinet member wielding executive power, or even a senator or MP with legislative influence. He only fought to become the most junior of nine jurists sitting on a bench that does nothing but render about 150 appellate decisions every year.

What Bahamians don’t understand is how closely politics and the Supreme Court have become intertwined, despite the famous separation of powers doctrine. Each Justice is now identified as “conservative” or “liberal”. In the present partisan environment, that means “pro-Republican” or “pro-Democrat”. Combine this with another feature that Bahamians (and most non-Americans) find baffling: the exceptional power held by the Court under the Constitution. Unlike in most countries where the legislature reigns supreme on major social issues, the Supreme Court can outlaw racial discrimination in public schools (Brown v. Board of Education, 1954) declare abortions legal (Roe v Wade, 1973) and uphold Obamacare health insurance (King v Burwell, 2015).

In the United Kingdom (which has no written constitution) and the Commonwealth nations, such sweeping decisions are unthinkable for any mere court-room determination, and judges are not deemed icons for political movements.

These two, virtually unique, features of the US power structure made it inevitable that President Trump would seize on the Kavanaugh confirmation as a test case for his own political dominance. Whether or not he cared much for the Judge’s personal record, if he once backed off from his all-out campaign and allowed the Democrats to use Dr Blasey Ford to defeat the Judge, that would be a personal blow to his machismo. He might lose his iron grip on his devoted band of Republican followers, the anti-intellectual blue-collar mid-America voters, predominantly white males, (rashly called the “deplorables” by Hillary Clinton). Through control of gerrymandered Congressionial districts, they elected Trump in 2016, despite loss of the nationwide popular vote, and he must rely on them again

For Mr Trump, Judge Kavanaugh was of secondary importance, purely a means to an end. His primary objective is winning the mid-term elections of November 6, when the fate of the House of Representatives hangs in the balance.

Clearly, he feels invigorated by the Kavanaugh success, evidence that his leadership powers are as potent as ever, despite the tiny 50-48 margin of victory where even some Republican senators expressed doubts (let alone 2,400 American law professors firmly opposed, including many former Harvard and Yale colleagues). He is publicly boasting that polls since the confirmation are showing a sharp up-tick of confidence among registered Republicans.

But there is also evidence that by engineering the Kavanaugh confirmation, Mr Trump may have reaped the Pyrrhic victory of winning the battle while losing the war. We see polls that female voters, who often avoid the ballot-box, may turn out in unprecedented droves under the #Me Too banner and other feminist symbols.

There’s no doubt that his crude last-minute sniping at Blasey Ford’s credibility, while entertaining his followers, infuriated countless numbers of her sex, most of whom we can be sure will vote Democratic. At this point, it’s impossible to predict whether the Republican enthusiasm over the Kavanaugh choice will prevail over the Democratic conviction that women’s rights were trampled underfoot. Either way, it could be, as Wellington said after Waterloo, “a damned close-run thing”.

Even if the House, and possibly the Senate, should swing Democratic this November, Mr Trump will remain firmly in the saddle as President until the 2020 elections. Prior impeachment, or removal as “unable to discharge his duties”, provide colourful talking points but are at the far end of probability, barring some unimaginable gaffe. It’s unlikely that moderate Republicans will find a candidate who can successfully stage any primaries to oppose him at the pre-election convention. Of course, he might resign and lead a Peoples’ Party to overthrow the government. Who can be sure, with a man driven by impulse and hubris?

Whether he can survive in November 2020 is a different question, depending on whom the Democrats find as their standard-bearer. Today’s prominent names like Senators Bernie Sanders and Elizabeth Warren will probably fade away as too lefty-liberal to sustain a national campaign, and other names will percolate to the top to give the party a wider appeal. An encouraging note was the recent announcement by former NYC Mayor Michael Bloomberg that next year he will consider putting his name forward. A self-made billionaire businessman, for 12 years as Republican he was able to navigate the predominantly democratic urban scene of volatile ethnic politics. Now disillusioned with the Trump-driven party, he may be ready for a formal switch of allegiance. He has not only the money but the proven political wits to run a formidable campaign. For the moment, Bahamians can just hope that Mr Trump will finally get around to pushing through an ambassadorial appointment to our little nation. Surely that will not be as controversial as the Kavanaugh decision.

My non-partisan friend at the Embassy points out that the ceremonial photo of Prime Minster Minnis smiling with the president was one of many posed with national leaders at the UN sessions, but at least indicates we are a friendly supporter of US foreign policies and may reap some benefits.

A quick presidential hop over from Mar-a-Lago for a round of golf could do publicity wonders for our sporting scene – once the choice among our four Nassau courses is resolved. Not like dealing with North Korea, but still a protocol headache for someone in The White House.