On the Left, Eyeing More Radical Ways to Fight Kavanaugh

And just as in the early decades of the 20th century, when a conservative-dominated Supreme Court repeatedly struck down progressive economic policies like child labor and minimum-wage laws leading up to the New Deal fight, Democrats fear that the new majority will systematically crush their achievements — not just hollowing out past gains like abortion rights, but also striking down programs they hope to enact if they regain power, like expanding Medicare or efforts to curb climate change.

.. Lindsey Graham, Republican of South Carolina, said on “Fox News Sunday” that he intended to help House Republicans in swing districts campaign on the issue over the next month, saying their Democratic opponents should be asked whether they supported impeaching Justice Kavanaugh and “Do you want an outcome so badly that you would basically turn the law upside down?”

.. Still, many liberals are quietly looking forward to reviving the fight if they win a House majority and subpoena power, rather than resigning themselves to waiting for a conservative justice to leave the court. The oldest of the five, Justice Clarence Thomas, is just 70.

Many are vowing, for example, to try to uncover more files from Justice Kavanaugh’s time as an official in George W. Bush’s White House in hopes of finding more evidence to support their accusations that he lied under oath about his actions.

.. As soon as Justice Kennedy announced his retirement in June, some liberals began calling for Democrats to prepare to expand the court by two justices when they regain power, permitting a future Democratic president and Democratic-controlled Senate to try to transform the court’s controlling faction from its five Republican appointees to six Democratic ones.

..  Carrie Severino, the chief counsel and policy director of the conservative Judicial Crisis Network, deemed it wishful thinking that Democrats would uncover irrefutable evidence of perjury by Justice Kavanaugh. She said it was “inconceivable” that the Senate would convict and remove him, and warned that even such an effort would damage the rule of law by delegitimizing the court as an institution that stands apart from partisan politics.

.. “Although Roosevelt lost that battle, he eventually won the war by serving three full terms as president and appointing eight of the nine members of the court,”

.. Lee Epstein, a professor at Washington University in St. Louis who studies the judiciary, predicted that Chief Justice John G. Roberts Jr., aware of the danger to the court’s legitimacy, will try to guide it into staying quiet for at least several years.

..  if the five conservatives stick together and severely circumscribe a future Democratic majority’s ability to govern, he wrote, “Democrats will face some difficult questions about whether to try court-packing or other forms of exotic procedural extremism in order to secure the authority to govern.”

In that case, he said, the silver lining for liberals is that Justice Kavanaugh was confirmed, as opposed to being withdrawn and replaced by an untarnished but ideologically similar nominee. The cloud over his presence, Mr. Yglesias predicted, will help the left’s “necessary delegitimization” of the court.