President Trump plans to nominate a replacement of Justice Antonin Scalia next Thursday, so Americans of all political stripes have a week to work themselves into a frenzy over the Supreme Court’s future — or to keep a sense of perspective.
I vote for the latter. To be sure, it won’t be easy for Democrats. Liberal bitterness is both palpable and justifiable, because the vacancy Trump is about to fill might not exist if Senate Majority Leader Mitch McConnell (R-Ky.) had not announced within seconds (or so it seemed) of Scalia’s death last February that he would not permit consideration of anyone then-President Barack Obama named prior to the election.
McConnell didn’t budge even when Obama chose the eminently qualified and eminently moderate Judge Merrick Garland.
McConnell’s gambit was a raw power play — to put it charitably — with scanty precedent at best. That it paid off infuriates progressives even more: Before November, Democrats could look forward to years, maybe decades, of at least a five-vote majority of Obama and Hillary Clinton appointees on the court, given the likelihood that liberal Justices Ruth Bader Ginsburg (83) and Stephen G. Breyer (78) would retire in a first Clinton term. A sixth liberal to replace 80-year-old moderate conservative Anthony M. Kennedy was possible, too.
A 5-4 — or 6-3 — liberal-majority Supreme Court could have reigned over federal courts that have already tilted left after eight years of Obama appointments. A second Warren court was at hand: Foreseeable results included abolition of the death penalty, solidified transgender rights, strengthened gun control, increased power for federal environmental regulators and, in response to Black Lives Matter, stricter constitutional scrutiny of the police.
So when Senate Minority Leader Charles E. Schumer (D-N.Y.) threatens to fight “tooth and nail” against an “out of the mainstream” Trump pick, perhaps keeping the court split between four Democratic and four Republican appointees, he is expressing both his party faithful’s fear of what a Trump pick would do, and their grief over what might have been.
The stakes aren’t necessarily apocalyptic, though, at least not immediately. If confirmed, a Trump-anointed conservative would simply restore the status quo ante Scalia’s death: an evenly divided court with Reagan appointee Kennedy as a persuadable swing vote.
As long as it lasts, such a court probably wouldn’t move the law abruptly right. Kennedy’s a staunch friend of gay rights; he’s on record, albeit grudgingly, in favor of two essential liberal goals, upholding Roe v. Wade and affirmative action in college admissions.
And it might last a while. Certainly Ginsburg, Breyer and Kennedy could make it through a first Trump term. In 2020, Democrats get another shot at the presidency and, with it, the power to pick justices.
There’s also the possibility — which, to be sure, the right will do its best to prevent — that a Trump appointee deviates from conservative orthodoxy on the bench. That’s been true of GOP picks from Harry Blackmun, the Nixon appointee who wrote Roe, to — yes — Scalia, who famously upheld a constitutional right to burn the American flag in protest and occasionally proved a stickler about certain rights of criminal defendants.
Chief Justice John G. Roberts Jr. sided with the court’s liberals in refusing to strike down Obamacare amid the 2012 presidential campaign, an act of judicial statesmanship that earned him undying opprobrium on the right — if not much in the way of offsetting appreciation from the left.
Roberts tried to keep the court aloof from the brutal politics of the past year. He declined to weigh in on the Garland controversy; he and his colleagues defused various controversial cases and minimized tie votes, which affirm the lower court’s ruling but set no precedent. That can’t go on indefinitely, however.
Politically comprehensible and — given the party base’s feelings — inevitable though they may be, Democratic efforts to block Trump from getting at least one Supreme Court pick through the GOP-controlled Senate are probably doomed.
Whether they fail after an attempted Democratic filibuster provokes the GOP to eliminate that procedural obstacle for Supreme Court nominations is pretty much up to Schumer.
What’s not guaranteed to fail, however, are any and all progressive arguments presented to the court during what could be a Trump appointee’s long life tenure on the bench.
Life tenure is part of the court’s problem, in that it raises the stakes of each vacancy. On the plus side, it can promote political independence.
The Supreme Court has never achieved perfect independence, actual or perceived; and it certainly doesn’t possess it now.
Still, our constitutional system can’t function without such independence as the court can retain. Preserving it is a long-term struggle, in which the pending nomination fight may be crucial but not necessarily final.
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