A reader comments on the impending retirement of Justice Kennedy:
We are so screwed. Who threatened him, one has to wonder.
In the interests of fairness, we don’t know his situation. Perhaps like the recently deceased pundit Charles Krauthammer, he’s facing a terminal prognosis and is putting his affairs in order. Or, as a few bitter liberals have suggested, he has detected a degeneration in his cognitive processes and has decided it’s time to make his exit before he’s forcibly removed.
But the fact remains that this will be a real problem for the Democrats. If they find a way to block a confirmation on a Trump nominee of sufficient right-wing views, they run the risk of enraging the moderate elements and losing their votes.
Kevin Drum disagrees, if somewhat limply:
As you all know by now, Supreme Court justice Anthony Kennedy has announced his retirement. He will be replaced by a hard-right justice and there’s nothing Democrats can do about it. This means two things are true:
- There will soon be five votes on the court to repeal Roe v. Wade.
- This should be enough to motivate Democrats to turn out in a massive wave even for a midterm election.
If it’s not enough to produce a blue tidal wave, I suppose we lefties might as well give up. Between this and everything else going on, what more can the leadership of the party want in order to finally produce a big midterm turnout?
Steve Benen notes how American style politics impacts free choice in suitably brutal fashion:
Abortion-rights advocates who stayed home in 2016, or voted for a third-party candidate, took a dangerous gamble. It now appears they placed the wrong bet.
Which raises the implicit question, Did it matter that Hillary Clinton was the Democratic nominee for President, or would any Democratic candidate been equally vulnerable to the tactics used by the GOP and allied groups?
David French on National Review agrees this will stir up the conservatives – at least those believe abortion is an evil:
And that brings us to politics. Heading into the midterms, Republicans were desperately worried about an “intensity gap.” Democratic voters seem prepared to turn out in huge numbers. Republicans — while holding firm in their support for President Trump — lacked the same excitement. Special elections were swinging strongly Democratic, and even though the generic preference numbers were trending closer, most observers thought Republicans would struggle to get their voters to the polls. I’d say those concerns are eased a bit today.
After all, for an immense number of base GOP voters, judges aren’t just an issue. They’re the issue that drives them to the polls. Republicans are all over the place on immigration policy, trade policy, and foreign policy. Divisions in the party are deep and real. Those divisions disappear when judges are on the line. We can debate all we want about Russian influence on the 2016 election (or about the effect of the Comey letter), but one thing is certain — if Evangelicals and other conservatives weren’t afraid of the impact of a progressive Supreme Court on their fundamental liberties, Donald Trump doesn’t win. A new Supreme Court pick will galvanize the entire base for months.
David wades into a complex morass. Sure, some liberties are limited by any Court composition, but then we’re not a nation of unlimited freedoms. The most important topic in the context of a new Justice, abortion rights, will undoubtedly be in danger of regressing if Trump lives up to his campaign promise to nominate a pro-life justice – rather than someone devoted to the law.
But David’s closing observation with respect to the history of justices may be inapplicable:
Finally, a word of caution to gleeful conservatives. We’ve been here before. We’ve had opportunities to remake the Court. President Reagan and the first President Bush together appointed a majority of the Supreme Court. Yet Roe endured, and the Court even moved left on key issues. Presidents don’t nominate robots. They nominate people who possess their own will. It will be imperative that conservatives closely evaluate Trump’s potential picks, but that person — no matter his or her record — will not only possess immense power, they’ll face immense pressure. May he or she possess not just the right philosophy, but also the necessary character to do all the job requires.
He assumes Trump will nominate an adult. I don’t make that assumption. Trump has a clear history of selecting unprepared, sycophantic personalities for important positions, with names like Tillerson (unprepared), Price, Priebus, Pruitt, Bannon, Miller, Spicer … all incompetent and most of them unprepared. I think Trump will be dearly tempted at the idea of nominating one of the current crop of power-chasers who’ve proclaimed themselves to be absolute Trump lovers. And will the GOP Senators dare to reject any Trump nomination? In a word, no.
Erick Erickson on The Resurgent doesn’t think this will be such a big deal:
… any nominee will have to get through not Democrats, but Lisa Murkowski and Susan Collins, both of whom are pro-abortion senators. They will provide cover for swing state Democrats to oppose any conservative jurist for the job. Additionally, Bob Corker and Jeff Flake are both retiring. Neither need show any loyalty to conservatives. This will be a steeper hill for conservatives to climb than they think because of those senators.
This is why President Trump should play it safe. He should consider someone like Senator Mike Lee, who his colleagues would be glad to push off to another branch of government. Or he should consider someone like Amy Barrett who these and several Democrats have already supported in the past year.
Lastly, President Trump has a list of people whose names he has already submitted to the public as possible nominees. The problem with that list is leftwing interest groups have spent the last two years collecting opposition research on each of them. That will make this nomination process far nastier than past nomination fights. Couple that with the Murkowski and Collins vetos and conservatives should be more realistic about the type of successor to Justice Kennedy we will get.
I couldn’t say if Erickson is anywhere near right. It is true that Kennedy has been mostly conservative of late. However, I’ll note that Bloomberg is reporting that Senator Lee’s name is already being noised about:
President Donald Trump has asked advisers their opinions about nominating Utah Senator Mike Lee to replace Justice Anthony Kennedy on the Supreme Court, according to three people familiar with the matter.
It remains early in the selection process for a nomination that will be a crucial part of Trump’s legacy, choosing a justice who is likely to serve on the court for decades and cement its ideological balance to the most conservative in generations.
Trump hasn’t settled on a favorite yet for the nomination, two of the people said. And even as the president mulls the 47-year-old Lee as a potential choice, the search for Kennedy’s successor remains wide open.
Senator Lee (R-UT) would put yet another Republican Senator’s seat in play for the mid-terms, but since it’s Utah, I don’t think there’d be much doubt that the Republicans would retain it, although of course there would be a cost involved. There’s not a great deal of material on Senator Lee, but he appears to be fairly conservative.
And, just for fun, until Justice Kennedy is officially retired, he could always change his mind. He’d be a drama queen in doing so, but he could.
