The Supreme Court vacancy presents more peril for Republicans than Democrats. Democrats want you to believe that somehow the president’s eventual nominee represents a frightening goose step to the right. They want you to think that freedoms and progress around gay marriage, all abortions, the environment and other liberal go-to causes would be eviscerated by a suddenly right-wing activist court. Typical of this is Sen. Kirsten Gillibrand (D-N.Y.), who on Thursday was joined by a few of the other would-be Democrat presidential candidates including Sens. Cory Booker (N.J.), Elizabeth Warren (Mass.) and Kamala D. Harris (Calif.) in front of the Supreme Court, where she declared, “The battle lines have been drawn. Which side are you on?” As The Post’s Sean Sullivan reports, “The extraordinary scene underscored the divide in the Democratic Party, pitting the centrists facing reelection this year against the possible 2020 hopefuls.”
But more broadly, it speaks to the partisan hyperbole and the demagoguery that is building around the Trump Supreme Court nomination that hasn’t yet happened. The fact is that a solid conservative is likely to be replaced by another solid conservative. Justice Anthony M. Kennedy will likely be succeeded by someone in the same mold, not the knuckle-dragging misogynist everything-hater that the Democrats want voters to believe President Trump will nominate. The left is nothing if not predictable these days.
Kennedy was a consistent, classic conservative. Remember, he was a Reagan appointee. Frankly, it may be hard to find someone much more reliably conservative than Kennedy. As of July 2014, he had voted with the late Justice Antonin Scalia 82 percent of the time, according to the New York Times.
Anyway, the Democrats are already overreaching in hopes of riling their activists, the media is trying to boost ratings by hyping the fight, and both Democrats and Republicans are trying to energize their voters and donors. The rhetoric is already so over the top that by the time there is an actual nominee, it will be anti-climactic. All the weeping and gnashing of teeth will just be background noise. If all goes well, this nomination will unfold much like the Neil M. Gorsuch nomination. Once Republicans secure 50 votes, the Democrats will release a few senators from red states so that they will not suffer with their more conservative voters back home. Remember, Gorsuch did end up receiving three Democratic votes from Sens. Heidi Heitkamp (N.D.), Joe Manchin III (W.Va.) and Joe Donnelly (Ind.). I wouldn’t be surprised if this nominee gets at least that many and maybe a couple more red-state Democrats on the ballot in November.
But I remind Republicans that nothing is a sure thing. A lot of uncertainty exists. There are at least two nightmare scenarios for Republicans. President Trump could make a big mistake and nominate another David Souter. I was in the White House during Souter’s nomination in 1990 and everyone just got it wrong. As soon as he crossed the Washington beltway after departing New Hampshire, he became a reliably liberal member of the court. There is a small chance it could happen again. Even worse, the president could nominate someone who midway into their nomination suffers from a surprise revelation that could be disqualifying. That would push the confirmation timeline beyond the midterm elections — when Republican retention of the Senate majority is uncertain.
Regardless of who is nominated and confirmed, there is very little chance of having five members on the court who will do anything to roll back substantive components of the laws that surround issues such as abortion and gay rights. First, the court is largely bound by precedent. Second, modern Americans have mostly come to terms with those issues. Gay marriage is now part of the American tapestry, and very few think abortion will be completely outlawed. Restricted probably but not outlawed. (For their part, the Democrats have abandoned any sense of objectivity on the issue of abortion. They are the ones who left the mainstream by nominating candidates who support abortion anytime, anywhere.) I hate to break it to the Democrats and their allies in the media, but 50 Republicans in the Senate would not hold together if the nominee were against gay marriage and for the criminalization of abortion. As a reminder, Sen. Susan Collins (R-Maine) said on Sunday she “would not support a nominee who demonstrated hostility to Roe v. Wade.”
Despite all of the howling that is set to take place over the next few months, when it is all said and done, about the best Republicans can hope for is that the new Supreme Court appointee will look like the old Kennedy.