A Replacement of Supreme Importance

The fight over choosing the successor to retiring Supreme Court Justice Anthony Kennedy has already flared into a conflagration engulfing Republicans and Democrats and portends the coming midterm elections which will be a ferocious dress rehearsal for 2020.

Justice Kennedy was not the be-all of liberals. As the outstanding swing vote, the centrist in a court divided 4-4 between conservatives and liberals, he many times swung over to the conservative.

Just last week, he allied with conservatives to reject the argument that Texas legislators intentionally discriminated against minority voters in 2013 redistricting. He also came down against the power of unions by supporting private, case-by-case arbitration. Nor will liberals forget that Kennedy sided with the Republican appointees (he himself was appointed by President Ronald Reagan) in the contested 2000 presidential election, conferring victory on George W. Bush over Al Gore.

Nevertheless, liberals consoled themselves that matters could be worse. Kennedy was reliably liberal on a host of issues involving marriage and morality which have profoundly shaped and shifted national norms to the left.

After Justice Kennedy, liberals fear the conservative deluge. President Donald Trump said he plans to announce on July 9 his nominee to fill the vacancy. It is almost a certainty that it will be someone to the right of Kennedy, and liberals expect that things will soon get much worse — at least in their eyes — as the court conservatives will likely gain a solid 5-4 majority in the very issues on which Kennedy swung left.

Their only hope is the midterm elections. If Democrats can break the Republican majority in the Senate, which must confirm the president’s nominee, they might be able to force him to choose someone closer to the Kennedy-type center.

That is, if the president does not nominate, and the current Senate does not confirm that nomination, before November.

Senate Minority Leader Chuck Schumer (D-NY) claimed the other day that it would be the “height of hypocrisy” for the Senate to vote on a new Supreme Court justice before the midterms. Schumer cited the refusal of Senate Republicans in 2016 to vote on President Barack Obama’s nominee, Merrick Garland, in order to allow voters to choose a president who might nominate somebody else. That’s what happened, when Donald Trump was elected and subsequently nominated the much more conservative Neil Gorsuch, who now sits on the court.

Schumer thinks it is inconsistent for the Republicans to insist on confirmation hearings before the midterms to get their man in, after they had insisted on waiting for elections when it was a matter of keeping Obama’s man out.

However, the cases are not as analogous as the senator from New York would have them. In the spring of 2016, when conservative Justice Antonin Scalia passed away, Barack Obama was essentially a lame duck president. No matter what happened in November 2016, he could not be president a third term. Historically, the power and influence of a president begins to wane at such a time, and the legitimacy of making choices that can affect the country for years — even decades — to come declines as well.

By contrast, Donald Trump has not even reached the halfway point in his presidency. And whether or not the Republicans manage to retain their majority in the Senate come November, President Trump will still be in the White House, and will have not an iota less of the constitutionally mandated prerogative of nominating Supreme Court justices. In other words, a midterm election doth not a lame duck make.

More than that, the truth is that the “height of hypocrisy” charge is, if not itself the height of hypocrisy, at least a rather tall story.

After all, the Democrats have played the same game. Presidents Bill Clinton and Barack Obama did not hesitate to have court nominees (Justices Breyer and Kagan) confirmed just ahead of midterm elections. Weren’t they concerned about depriving the voters of a say in who gets to appoint the judges? Apparently not.

Just one day before Senator Schumer’s remark, Democrats were reliving the Merrick Garland story, accusing Senate majority leader Mitch McConnell of “stealing” a seat on the court from Obama by delaying the confirmation process until after the 2018 elections.

But this is nonsense. The president has every right to make his pick, and the Senate can choose to confirm or not, regardless of electoral contingencies. People have a right to vote for presidents and senators — not for Supreme Court justices.

Having said that, there is no denying that the membership of the court has become an increasingly important factor in the upcoming elections. In 2018, polling showed that the Scalia vacancy resonated deeply with Trump supporters. At campaign rallies, Mr. Trump was eager to remind them of the dire judicial consequences of a Clinton victory.

Kennedy’s decision to resign has already triggered nationwide campaigns to pressure lawmakers to take sides on the issue. Even if they cannot prevent the Senate from confirming a Trump choice, liberal groups are threatening serious electoral repercussions for Democrats who go along with it. Conservative groups are lobbying Republicans to remain firm despite the storm.

Who will gain or lose is hard to say. On one point there is bipartisan consensus, however: The issue is a momentous one.

Campaigning Wednesday night in Fargo, North Dakota, President Trump declared, “Justice Kennedy’s retirement makes the issue of Senate control one of the vital issues of our time.” Electing more Republicans, he said, is “the most important thing we can do.”

Democratic National Committee Chairman Tom Perez agreed: “If there was ever any question whether the November elections would be the most important of our lifetime, Justice Kennedy’s retirement should remove all doubt.”