This week, the dividends of that appointment for conservatives were apparent in two landmark conservative rulings. In National Institute of Family Life Advocates v. Becerra, the high court ruled that the state of California cannot force crisis pregnancy centers to advertise access to abortion to their clients, in violation of the owners’ conscience. And in Janus v. AFSCME, the court ruled that public workers cannot be forced pay union dues to support public policies with which they fundamentally disagree. These were critical 5-to-4 rulings that buttressed the First Amendment freedoms of all Americans.
Trump was able to preserve the status quo before Scalia’s passing. But now, with the news that Justice Anthony M. Kennedy is retiring, Trump has a chance to do something much bigger: He can not only preserve but also expand the court’s conservative majority. If he replaces Kennedy — a swing vote who often joined the court’s liberal bloc on important matters — with a reliable conservative in the mold of Scalia and Gorsuch, the president may have transformed the court for a generation.
To do this, Trump will have to break the mold of his Republican predecessors. Over the past three decades, presidents from his party have picked seven justices, and several have turned out to be disappointments to conservatives. President Ronald Reagan picked three justices (Sandra Day O’Connor, Scalia and Kennedy), but only one, Scalia, was a consistent conservative. President George H.W. Bush picked one solid conservative (Clarence Thomas) and one (David Souter) who was not. George W. Bush did better, appointing two conservatives, Samuel A. Alito Jr. and John G. Roberts Jr. But even Roberts disappointed conservatives when he cast the deciding vote to uphold the Affordable Care Act in a stroke of judicial activism. If Trump picks not one, but two reliable conservative justices, he will secure the best record of Supreme Court appointments by any modern Republican president.
Liberals understand exactly what is at stake. That means whomever Trump picks will face a barrage of attacks unprecedented even by the standards of past confirmation brawls. But thanks to the Democrats’ imprudent decisions to break precedent and change Senate rules to confirm lifetime appointments to the federal circuit court under President Barack Obama, and then to filibuster Gorsuch, Senate Republicans need only a simple majority to confirm Trump’s choice. So long as Republican senators stick together, Trump’s nominee will be confirmed.
Already some Democrats are protesting that the Senate should not confirm a Supreme Court justice during a midterm election year. Sorry, the Senate confirmed Obama appointee Elena Kagan in August 2010, just before the midterm elections — and did so with a bipartisan 63-to-37 vote. Democrats are grasping at straws because the timing couldn’t be worse for them as they seek to gain control of the Senate in November. Senate Majority Leader Mitch McConnell (R-Ky.) has announced that the confirmation vote will take place in the fall, which would put Kennedy’s replacement on the bench when the court’s new term begins on the first Monday in October. Pity the Democratic senators such as Joe Manchin III (W.Va.), Heidi Heitkamp (N.D.), Jon Tester (Mont.), Claire McCaskill (Mo.) and Joe Donnelly (Ind.), who are running for reelection in states Trump won by double digits. Their political survival depends on being perceived as centrists, and they will now have to spend months campaigning while caught in the crossfire of a liberal-conservative battle royal over a Trump-nominated Supreme Court justice. Vote yes, and their liberal base will be apoplectic; vote no, and their pro-Trump constituents could revolt.
For all these reasons, Trump’s appointee is likely to be confirmed. If that happens, Trump will have led one of the most consequential conservative presidencies in modern American history. Not only is Trump expanding the conservative Supreme Court majority, he is also moving at record pace to fill the federal appeals courts with young conservative judges who will preside for decades. Imagine if it were Clinton making all these appointments. The consequences for human life, religious liberty, the Second Amendment and limited government would have been disastrous.
Instead, the choice of the next Supreme Court justice is in President Trump’s hands. So, to all the conservatives who cast their ballots in 2016 for just this moment — you did the right thing.