Forget “The Wall”: The Most Important Part Of Trump’s Legacy May Be Reshaping The Supreme Court
Justice Anthony Kennedy, Who Just Announced His Retirement, Was Nominated By President Reagan In 1987 At The Age Of 51. He Then Served 31 Years On The Court. That Means His Replacement Could Reasonably Be Expected To Last Til 2050. That’s 7 More Presidential Elections.
And if for whatever reason Trump gets the additional opportunity to replace one of the more liberal Justices during his term: game over.
At a rally last night in North Dakota, Trump is dead-on when he says: “Justice Kennedy’s retirement makes the issue of Senate control one of the vital issues of our time.” Here’s a bit more of the President talking about his plans for the Court, and the Senate (the Heidi he refers to is Democratic Senator Heidi Heitkamp, who Trump was mainly in North Dakota to campaign against). Click on the photo to watch:
We know at this point some of you are going to start yelling at us that it’s really Senate Majority Leader Mitch McConnell’s legacy, not Trump’s, because it was McConnell who blocked President Obama’s Supreme Court nominee, Merrick Garland, from getting a hearing or a vote after Justice Scalia suddenly died. McConnell argued there was precedent not to consider a nominee during an election year. Now, he says he meant a Presidential election, as he vows to get whomever Trump nominates approved before the midterm elections this fall.
And face it: Trump’s going to take and get all the credit. How many times have you heard him mention Justice Gorsuch, his one and only appointee to the Court to this point? Like, every day…He definitely talks — publicly at least — about Gorsuch much more than he does his own sons.
And McConnell’s way gotten too much credit anyway: yes, his desperate political gambit paid off. But a lot of what happened was the result of Republicans playing the political game way better than Democrats in the past decade or so at the state and local level. And voter apathy, which Trump remedied for Republicans, but Democrats still haven’t proven they’ve fixed.
Anyway, let’s get back to what Trump said: yes, the Senate is crucially important and it’s going to be much harder for Democrats to flip the Senate than the House this year because of a weird coincidence where Democrats are defending far more Senate seats than Republicans. But as far as Supreme Court nominees go, control of the House counts for zero, since the approval process lies entirely within the Senate.
One hope for Democrats is that some lame-duck Republican Senators might try to leverage a vote for Trump’s nominee with getting the President to back off on tariffs, or “the wall”; something like that. It wouldn’t ultimately assist Democrats in shutting down Trump’s nominee, but it might gain them some daylight on other issues they care about. Arizona Republican Senator Jeff Flake has vaguely suggested he might use Judicial nominees as leverage against Trump, but would he go up against a Supreme Court nominee? Doubt it.
Or maybe someone like Maine Republican Susan Collins chooses to protect the public from the worst Trump has to offer. At the same time, there’s no guarantee some red state Democrats with tight polling numbers won’t vote in favor of Trump’s nominee, especially if that vote is scheduled right before the election.
We were really surprised today about how many of our more liberal friends took to Twitter and Facebook to urge Nancy Pelosi and Chuck Schumer to “grow a pair” and block Trump’s nominee “McConnell-style”. Except they can’t. As we explained above, the House has no role in this, so don’t waste your time on Pelosi. And Republicans controlled the Senate last time around, as they do now. In order to regain that influence, Democrats will have to flip it. With Doug Jones’ unexpected victory in Alabama, and John McCain’s extended absence due to his battle with cancer, the Senate’s virtually even right now, but as long as Trump’s in office, Vice-President Mike Pence will always be the deciding vote. Meaning if every Democrat votes against Trump’s nominee, they can still get through on Republican votes alone. So vote.
We talked a little yesterday about how Kennedy’s concurring opinion in the “travel ban” case sure read to us like parting advice from an “elder statesman”. In it, he exhorted U.S. government leaders to “preserve and protect” First Amendment rights.
Kennedy’s was the deciding vote in virtually all the more liberal-leaning Supreme Court rulings of late, while he still sided with his Conservative colleagues more often than not. He was — to his credit — the least predictable Supreme Court Justice, and seemingly the most open to at least considering views in opposition to his own.
Kennedy wrote the majority opinion in the 5–4 decision to legalize same-sex marriage, saying the Constitution provides for same sex couples receiving “equal dignity in the eyes of the law”. One of several rulings where he was the deciding vote in support of LGBTQ rights.
Of course, Kennedy also wrote the majority opinion in Citizens United, the case that threw open US politics to wads of dark money.
Kennedy also decided in favor of Planned Parenthood in a case that threatened to raze Roe v. Wade. He wrote the majority opinion there too. Something a more reliable far-Right Justice of the type Trump is likely to pick, would likely not have. (In other words, Trump was probably right when he predicted the demise of Roe v. Wade, although that may take some time yet). In that case, Kennedy wrote:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”.
Of the dozens of articles we read today about Kennedy, and Trump and both their legacies, one really stood out: a piece in the Washington Post by a former Kennedy clerk, with the foreboding headline: “The Supreme Court Will Now Fall To Chaos”. Go ahead: be scared, but please read it. It’s important. It brings up what is perhaps the most important issue in all of this: at a time when peoples’ faith in government is failing, it’s important to have a Court they have faith in.