Paul Campos says that if Brett Kavanaugh is confirmed, he and the other four conservative justices of the Supreme Court will have been appointed illegitimately.

Clarence Thomas, he said, perjured himself. John Roberts and Samuel Alito were appointed by George W. Bush, who won the 2000 election thanks to the court. Bush did not win the popular or electoral vote. He won because a divided court told officials in Florida to stop recounting. Then there’s President Donald Trump’s picks, Neil Gorsuch and Kavanaugh. Like Bush, Trump did not win the popular vote either.

I’m going to exempt Thomas from this argument, because I think it’s about a president’s legitimacy, not a justice’s. George HW Bush was duly elected. He nominated Thomas. Whatever you might think of him, he’s legitimate.

I’d argue Roberts and Alito are legit, too. I get why Campos says otherwise. Bush did not win on his own; ergo, his nominees are illegitimate. But Roberts was confirmed in 2005 and Alito 2006—after 2004 . Yes, you could say Bush could not have won reelection had he not been handed the 2000 election, but nonetheless, he won. The people had their say. I don’t think it’s fair, or accurate, to say they are illegitimate.

Neil Gorsuch and Brett Kavanaugh are another matter.

Not only did Trump lose the popular vote to Hillary Clinton (by a huge and meaningful margin). He almost certainly won the electoral vote with the help of a hostile foreign government benefiting from the weakening of the US. There are many ways to impair a republic. One is increasing the power of its most undemocratic branch.

In my view, Trump need not have conspired with the Russians for their aide to render his presidency illegitimate. This is an important nuance generally overlooked by the president’s critics. The salient question, however, should be whether a candidate wins on his or her own. If not, victory beggars any ordinary notion of legitimacy.

While it’s still unclear whether Trump colluded (the Mueller probe, when completed, will tell us more), it is likely that Russian saboteurs turned the election in his favor. James Clapper, the former intel chief, has said as much. Kathleen Hall Jamieson, a legend in political circles, underscores the claim in Cyberwar: How Russian Hackers and Trolls Helped Elect a President—What We Don’t, Can’t, and Do Know.

In an interview with Jane Mayer, Jamieson implied that asking whether the Russians altered votes is the wrong question. A better question is whether the Russians persuaded enough people in the right states to vote a certain way. Given Trump won by 80,000 votes in three states, that’s almost certainly what happened. Mayer:

Extensive studies of past campaigns, Jamieson said, have demonstrated that “you can affect people, who then change their decision, and that alters the outcome.” She continued, “I’m not arguing that Russians pulled the voting levers. I’m arguing that they persuaded enough people to either vote a certain way or not vote at all.”

Such conclusions run the risk of pegging our current dilemma to the here and now. It started long ago. As I said, one way to impair a republic, from the Kremlin’s point of view, is to increase the power of its most undemocratic branch. The Russians, however, were deepening a pattern established by the Republicans after 2000.

Here is what Jack Balkin (via Campos) said:

By intervening in the election, the five conservatives installed a President who would appoint their colleagues and successors and would stock the federal judiciary with like-minded conservatives. Bush v. Gore was troubling because the five conservatives appeared to use the power of judicial review to secure control of another branch of government that would, in turn, help keep their constitutional revolution going. It is one thing to entrench one’s constitutional principles through a series of precedents. It is quite another to entrench one’s ideological allies by directing the outcome of a presidential election.

I have said in previous editions of the Editorial Board that Kavanaugh’s confirmation (should he be confirmed) will be the end of an era in which liberals and those who seek justice can depend on the Supreme Court as a backstop in the fight for liberty and equality. This is the conclusion of a story liberals have told themselves—that the rule of law serves the many, not the few, and that the righteous prevail in the end.

But Kavanaugh’s confirmation is the acme of something else. Years and years of conservatives taking their place in the federal judiciary thanks to two Republican presidents. These jurists will push back against progressive political energy, preserve moneyed interests and otherwise defend for as long as possible minority rule.

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Manchin in the middle

The Senate passed a cloture vote this morning, sending nominee Brett Kavanaugh to a floor vote this weekend. Odds are still in his favor even though the Democrats are in line with a growing chorus of nonpartisan voices who oppose his nomination. The Republicans, as they have before, are ready to ram him through. They might suffer at the ballot box, but near-term pain pales compared to long-term power.

Heidi Heitkamp won’t be part of that.

She’s probably the most vulnerable Democratic senator. She told a North Dakota news outlet that she would vote no on Kavanaugh. Her vote means Joe Manchin, of West Virginia, is the last remaining red-state Democrat to be undecided. The Democratic base is already firing warning shots his way, vowing to punish him for a yes vote.

This is one of those moments that clearly illustrates the natural and unavoidable tensions that take place in a big-tent party. It won’t get better if the Democrats succeed in November. The party will have members that are far less liberal than the base would prefer, and that’s just the way it is. The base must tolerate it.

The Democratic Party is not the Republican Party. It is a heterogeneous organization, as diverse as the country as a whole. The Republicans, meanwhile, are homogeneous, as diverse as Wyoming. Both factors are a source of strength and weakness.

As for Manchin, he’s on knife’s edge. Vote against Kavanaugh, and he might lose voters in a state where Donald Trump’s favorability is well over 50 percent. Vote for him, and he might take the gas right out of Democratic voters. In any case, Manchin will have to decide based on conditions on the ground, as they say in the Pentagon.

But most importantly, Kavanaugh can still be confirmed if he votes no. Remember that Mike Pence, as the vice president, is the tie-breaker. If Mitch McConnell can hold his caucus, the GOP wins. No sense in Manchin sacrificing himself for a symbolic vote.

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Dems can take the Senate

Polling this week—well, at least one—has shown a slight bump in favor of the Republicans. That’s almost certainly because of wall-to-wall coverage of the Kavanaugh nomination. But once the Senate votes, and I presume it will vote to confirm him, the media’s attention will turn to other things. So will the polls.

However, as I said yesterday, this is a good thing, politically. While the GOP base will feel satisfied, the Dem base will feel enraged even more. Good! Yes, there’s still a month to go before the midterms, but anti-Kavanaugh energy is part of the larger anti-Trump energy reshaping politics now. That’s not going away in a month.

In saying this, I risk sounding cold, as if nothing matters but politics. What about all the reproductive and minority rights! I concede it sounds cold. Maybe is it in fact cold. But it is intended to illuminate coldly what I think is most important right now, which is for the Democrats to take the Congress, and to control it for years.

As Jack Balkin said 18 years ago, five justices used their power in 2000 to secure control over another branch of the US government. If that’s not literal oligarchy, it’s pretty damn close. Given that minority rule in the courts is the product of years of effort, it’s not going to go away in a month. The best thing any of us can do now is to do everything we can to take back the Congress. We are on track to do that.

The Editorial Board’s Chris Luongo thinks the Democrats can take the Senate.

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