Donald Trump and the Supreme Court's Future

The Supreme Court just recently upheld President Trump’s executive order travel/immigration ban from several predominantly Muslim countries. This was the President’s third attempt at a ban to restrict immigration from countries with known terrorist ties, countries whose governments are so low-functioning as to be virtually incapable (and unwilling!) to provide the U.S. with any meaningful vetting information on the proposed immigrants.

Not a single sane-thinking person of any political stripe disagrees in the privacy of their own thoughts with the notion of restricting unvettable immigrants from terror-producing countries. This was a good decision, a win for the country, obligatory bleats of protest from the Usual Quarters notwithstanding. The Court’s vote was 5-4, with the “4” no doubt feeling confident that they could vote ‘no’ and thus preserve their liberal bona fides, secure in the knowledge that the ‘5’ votes were there, and the measure was going to pass anyway.

This latest Court vote demonstrates, once again, that the President’s -- any president’s -- ability and opportunity to name Supreme Court justices are without question his most lasting and impactful actions in office.

Justice Anthony Kennedy just announced his retirement from the Court, effective July 31st, 2018. Named to the Court by President Reagan in 1987 (confirmed in 1988) after the Robert Bork debacle, Kennedy has long been considered a swing vote, unpredictably voting with either the liberal or conservative side in many key cases. Replacing Kennedy with a more reliable partisan vote, in either direction, will definitely shift the balance of the Court for many years to come.

It is the specter of Kennedy’s retirement that makes these mid-term elections so important. While all the talk has been about a so-called “Blue Wave” that would wrest control of the House away from the Republicans and make Nancy Pelosi Speaker once again, as chilling as that thought is to conservatives the real drama of this year’s elections concerns the Senate.

After Judge Roy Moore committed political suicide and gifted a Georgia Republican Senate seat to the Democrats in December 2017, the current Senate count is 51-49 in favor of the Republicans. There are 33 Senate seats up for election this November, 9 Republican and 24 Democrat (including independents who caucus with the Democrats). Without handicapping every single race and analyzing every conceivable scenario, it is not beyond the realm of realistic possibility that the Democrats could retake the Senate with a net gain of just two seats.

Trump’s purported political “allies” (House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, Attorney General Jeff Sessions, et al.) haven’t exactly been cooperative or helpful to any meaningful degree in terms of helping pass his legislation or helping him achieve his political aims. Bills inexplicably languish, legal/political initiatives remain frustratingly unpursued, and corrupt swamps are still maddeningly undrained. His so-called governing partners have been of astonishingly little help.

The only truly meaningful assistance that Trump’s party-mates have given him was when McConnell changed the existing rules of the Senate and executed the so-called “nuclear option,” whereby Senate confirmation of a Supreme Court nominee required only a simple majority of 51 instead of the previous super-majority of 60. The 60 number is not a legal requirement; it has simply been sort of an unspoken gentlemen’s agreement that important issues require at least a minimal degree of bipartisan support, so the 60-Vote Rule was adopted. When it became obvious that Democrats (and all too often, some dependably-obstreperous Republicans like McCain, Paul, Graham and others) had no intention of supporting anything coming from President Trump, McConnell changed the Supreme Court voting requirement to 51 so Trump nominees would at least have a chance at confirmation and the nation’s highest court could be fully staffed. Note that McConnell could have changed the requirement in the Senate to 51 votes for all measures, but he didn’t. Only for Supreme Court nominees. All other major issues still require 60.

The current 51-vote requirement is why Kennedy’s retirement before the November mid-terms is so important. Assuming a Trump replacement nominee could reach the Senate floor before November for a vote -- and assuming those few troublesome Republican senators put their grandstanding egos on hold and toe the party line -- Kennedy would be replaced by a conservative-leaning judge and the Court would become more consistently conservative in its rulings.

But if the Democrats delay the confirmation hearing and retake the Senate in November 2018, then all bets are off. In order to pass Democratically-controlled Senate muster, a Kennedy replacement would have to be a malleable centrist at the very least, if not a full-fledged liberal. At that point, the options for President Trump are either a liberal Court or an eight-person bench until 2020, with Republicans hoping for a Trump re-election and a Republican retaking of the Senate.

If the Republicans hold the Senate in 2018, then they will replace Justice Kennedy with a more conservative jurist (if they haven’t done so before the elections). Liberal justice Ruth Bader Ginsberg is 85 and in questionable physical and mental health. (Who can forget her many instances of falling asleep on the job or her numerous close-to-incoherent utterances?) Similarly, liberal Justice Stephen Breyer will be 80 in August and it is conceivable that his term on the bench could also be ended for age-related reasons, especially during a second Trump term. If President Trump gets to replace them on the Court, then the country could very well have a 6-3 or even 7-2 conservative-leaning Supreme Court, for decades to come.

The implications will be huge for immigration policy, federal funding for sanctuary cities, environmental issues, affirmative action/racial quotas, gun-control rights and many others. (Interestingly, probably less so for reproductive rights than many people think, because even in the highly unlikely event that the Court overturned the decades-long, oft-challenged-but-always-survived Roe v Wade ruling, the matter would simply revert to the states, where it’s highly likely that the states -- especially the more moderate-to-liberal ones -- would retain the availability of “choice” pretty much exactly as it is now. That’s a discussion for another time.)

So while the drama and anticipation of whether the Blue Wave will indeed flip a few dozen House seats and give control of the House of Representatives back to the Democrats, seasoned political observers know that it is the 2018 Senate races -- not the House -- that hold the most impactful long-range implications for the country.

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