ESTRICH: This is what happens when you lose an election

This is what happens when you lose an election. You get Justice Neil Gorsuch instead of the wonderful Merrick Garland, who President Barack Obama nominated before Democrats lost in 2016.

And you get Judge Brett Kavanaugh, who is not on any Democrat’s list.

This court will shape my children’s lives. The alternative — a Supreme Court shaped by Hillary Clinton — would have been so different. Why didn’t all the people who are upset now see it then, before the election?

Every four years, Democrats try to get voters to focus on the Supreme Court as a voting issue. We’ve had old justices on the verge of retirement for decades, and Roe v. Wade has been hanging by a thread since it was decided. And yet those two facts combined have rarely produced votes for the Democrats, even though the polls show that the country does not want to turn back the clock by overturning Roe.

The reason for this political failure — and it is that — is largely our own successes. Roe has not been overruled. It has just been nitpicked half to death, and the half has been disproportionately borne by the disenfranchised.

No, the Supreme Court has not overruled Roe. But it has upheld state regulations — requiring abortions to be performed in hospitals, limiting which health care providers can perform them — that make abortion more expensive and less accessible for those who are most vulnerable: for poor women (no funding even if the procedure is medically necessary); for young women (who may need to get parental consent or a court order); for any woman who cannot afford to take two days off work or travel great distances or pay double.

For these women, Roe v. Wade is an elusive promise. Too bad so many of them don’t vote, and those who do tend to live in very red states.

And I won’t say that it is too bad that we have eased access for the majority who do vote, including educated women in more urban areas and even underage college students. That is a great triumph. But it has forestalled a revolution that seems long overdue.

When I tell my students my stories about lying to doctors, about buses to New York, about contraception being illegal, they think I am even older than I am. Then I give them articles about drugstores that won’t dispense medicines that will induce a miscarriage, and they have to decide if it could happen to them.

Ideally, the confirmation hearings will be for them. Ideally, the hearings are the opportunity for the Democrats to make clear the consequence of the choices we make at the ballot box for our liberty and freedom.

I say ideally because the last nominee to tell it like it is, in terms of his beliefs, was Judge Robert Bork. The result was that he was not confirmed. There are countless decisions that might have come out differently if he had been.

Since Bork was, as his supporters decry, “borked” by ideological opposition (and by his own insistence on actually answering the questions), nominees have learned the BS — hold on now! — of balls and strikes. That’s what we do, one nominee after another will say, we call the balls and strikes. We don’t make the law; we don’t throw the pitch; we don’t play on one team or another. We’re the umps.

And I’m the queen of England.

No sophisticated student of the law on either side of the ideological spectrum actually believes that. It is precisely because the Constitution is a “living” document (a nice way of saying an evolving one), and because the life of the law, as Oliver Wendell Holmes said, is not logic but experience, that we fight about nominees.

That doesn’t mean that every decision a court makes is a political exercise. That is a mistake law students, eyes suddenly open to the subjectivity of law, sometimes make. Lots of cases are utterly predictable and nonpolitical, application of settled law and policy. But those cases almost never get to the Supreme Court.

It is still possible that a justice will surprise us, like we were surprised by former Klansman Hugo Black, who turned out to be the voice of civil liberties; or Republican appointee John Paul Stevens, who was opposed by NOW but turned out to be an outspoken voice for equality and inclusion. But that is not what the people who selected Judge Kavanaugh are counting on. Nor should those who oppose him.