The retirement of Associate Justice Kennedy from SCOTUS will almost certainly bring into strong relief the political riptides currently besetting the GOP, particularly those of a moderate, i.e., responsible bent, as modulated by President Trump’s nomination.
Let’s assume Trump does his usual thing and finds some extremist conservative (a phrase I tire of typing) legal type and nominates him. Given the 51-49 nominal status of the Senate (50-49 if we discount Senator McCain, who is severely ill with brain cancer, but he may vote on a matter of a new Justice no matter how ill he may be), this places any Republican Senator who finds that nominee objectionable in a position of great power. A simple vote against the nominee puts the nominee on the precipice, and if a second GOP Senator refuses to vote for him – even through abstention – then President Trump is left with egg on his face, a condition which he’ll greatly resent. This presents an opportunity for great leverage for any Senator willing to grasp the lever and with a burning issue in hand.
But that lever comes with an electrical charge in the form of President Trump’s base. The pressure they can bring to bear on a Senator exercising due diligence (Trump would call it disloyalty or even treason) will be incredible. Senators Flake, Corker, and McCain, who will face re-elections runs due to retirement or illness, are somewhat less vulnerable, but their record with regard to due diligence with other Federal judiciary picks does not inspire confidence in this scenario.
But even if Trump comes up with a semi-reasonable pick, it’ll still have the potential to be a circus. The amount of power a single Senator will enjoy during that short period, foreshortened as it will be by the oncoming election, will be, they think, immense.
But Trump’s hole card will be his dishonesty, his inability to hold to a bargain. That’s the joker in the deck.
And, finally, Justice Kennedy has had a long career of holding great power by his willingness to straddle the line between the liberals and the conservatives. By this final act, during the midst of a mid-term election which had been considered a prime opportunity for the Democrats to take control of the House, he has provided the fire the GOP, and more importantly President Trump, has been trying to ignite under the feet of moderate Republicans to come out and vote for the candidates he favors, candidates who have clutched him most frantically and, for this Republic, unhealthily, to their bosoms. Trump might have depicted the Democrats as unpatriotic leftist extremists in any scenario, but now he has the carrot to dangle in front of those voters, as well as the stick: another SCOTUS Justice’s seat to win for the conservative side. Not only does this make it highly unlikely that the Senate will be won by the Democrats, but since the voters will be in those booths anyways, the GOP candidates will enjoy a boost that the Democrats will find hard to beat. And, no doubt, Trump will elide the fact that only the Senate has any approval power over the SCOTUS pick, thus beating the bushes for extra conservative voters for his House Favorites.
Minus any unforeseen events, I do not expect the Democrats to take the Senate, and the House will be a hard mountain to climb.
But this is the era of Trump, which means that there may be multiple unforeseen events that will topple the majorities. Indeed, Special Counsel Mueller may come forward with a pair of handcuffs for a Trump family member, and given the graceless way every single one of them carries themselves, including the First Lady, there will be scant public sympathy for that family member outside of the GOP base. Or possibly the Trump Recession will start, and disaffected moderate Republicans and Independents will flock to the Democrats.
But, without those factors, this appears to be the way to bet.
