For Trump, the retirement of Anthony M. Kennedy could not be better timed. Replacing the Supreme Court’s most prominent swing vote combines every culture war battle into a single, all-consuming conflagration. And when hatred is at its height, and civility and comity completely break down, and Americans are at each other’s throats, Trump is in his element.
The actual stakes of the struggle are a bit lower than either side — intent on whipping up the froth of their own partisans into stiff peaks — will admit. Activists are already making the shorthand argument that replacing Kennedy with a conservative judge means the death of Roe v. Wade and the illegality of abortion in much of America. In fact, replacing Kennedy with a conservative judge means that Chief Justice John G. Roberts Jr. will become the new swing vote. This will probably make the court more likely to take up decisive and fundamental cases on cultural matters (because the chief justice can be more confident in determining the outcome). But Roberts — as he demonstrated in his 2012 decision leaving Obamacare largely in place — is uncomfortable with sweeping decisions and is willing to risk conservative displeasure.
The result of a Roberts-dominated court, over time, would probably be the weakening of Roe’s pro-choice absolutism. This would allow states more latitude to make incremental restrictions. But before Roe, many states were already moving in a pro-choice direction. And the availability of abortion has become a deeply entrenched social expectation. A democratically determined outcome in most places would probably involve very few restrictions on early abortions, when a fetus is nearer to being a blastocyst, and greater restrictions on late-term abortions, when a fetus is nearer to being a newborn.
Roe is vulnerable to revision because it is medically, morally and legally incoherent. It drew a series of preposterously arbitrary scientific lines, declared the ethical concerns of millions of Americans inconsequential and forestalled the development of a more stable and legitimate democratic consensus. In all likelihood, Roberts will try — gradually — to allow democracy to resume its work in this matter. This is not likely to please those who view abortion as a fundamental right or as a fundamental wrong. But the result would probably be more favorable to the pro-choice position than many pro-choice activists fear.
As a political matter, however, the fight over Kennedy’s replacement is a gift to the president. It is a reminder of Trump’s adherence to the deal he made with evangelical Christian (and other religiously conservative) supporters: Ignore my bigotry and bad character, and all the kingdoms of the courts, from lowest to highest, will verily be yours.
But it is more than this. In his tariff policy, Trump is an economic illiterate. In his foreign policy, he is an easily manipulated tyro. In his immigration policy, he is condemning Republicans to future defeat. But when it comes to the choice of judges — which he has effectively delegated to the Federalist Society — Trump is firmly in the GOP mainstream. He is making moves that genuinely unite conservatives of all stripes.
If, for example, Trump is wise enough to nominate federal appeals court judge Brett Kavanaugh
to the Supreme Court, he will do more than rally his base. Nearly every veteran of the George W. Bush administration will lend their enthusiastic support. When Kavanaugh was Bush’s staff secretary (the essential position that handles the paper flow to the president), I was head of speechwriting. And seeing Kavanaugh’s concern for accuracy and honesty, his focus on detail, his unfailing decency, his quiet integrity, was one of the joys of my job. Kavanaugh’s writings reveal his judicial philosophy. But I also know him to be a conservative by temperament — fair-minded, non-dogmatic and thoughtful.
Others who appear on Trump’s shortlist would have similar broad appeal among conservatives — even #NeverTrump hard-liners. Unless Trump blows this nomination with a foolish, impulsive pick (not impossible), he will enter the midterms with a cause that excites his base
unites his party.
Once again, Trump’s luck holds.