Sunday, July 1, 2018

Supreme Injustice

Liberals are tearing their hair out over Justice Anthony Kennedy's retirement from the Supreme Court, but before any of you get heated up over it (isn't it hot enough outside?), bear these things in mind:
First, it is true that Justice Kennedy was a swing vote on key issues.  He was the swing vote on marriage-equality issues, all right, but he was also the swing vote on the Citizens United ruling and the upholding of the Trump travel ban, ans his parting gift was a ruling gutting public-sector unions.  When he first joined the Court as the replacement for Lewis Powell (no liberal himself), he was a more reliable conservative.
Second, the Court's entire composition changes with each new member, just as the Who were a different band after Keith Moon did. The chemistry changes, the power shifts, and someone else becomes a swing vote. The likeliest candidate for that position now is Chief Justice John Roberts, who is a reliable conservative but is also a minimalist who cares about the Court as a impartial, nonpartisan institution ans was the justice who saved President Obama's health insurance mandate (which Congress has since repealed).      
Third, it will be tougher for Trump to get a Supreme Court nominee through, because Senate Republican leader Mitch McConnell has to deal with a 50-seat caucus (Arizona's John McCain is still out of commission), from which a couple of Republican senators might defect when voting on a nominee.  The Senate Democrats running for re-election in states carried by Trump in the 2016 presidential election are in a more secure position now then they were when most of them voted to confirm Neil Gorsuch.  They're likely to be less intimidated now.
And by the way, I've been led to understand that many Democrats feel they should have made more of a fight to get President Obama's Supreme Court nominee Merrick Garland a hearing and a vote.  Oh, now you think of that?  You certainly never thought Hillary would lose the 2016 election and the Democrats would stay in the minority in the Senate going into the current Congress, mainly because your imaginations weren't elastic enough to ponder the idea that Hillary was not, in fact, inevitable.  You were even hoping Hillary would appoint someone else because you didn't think Judge Garland was liberal enough, so you didn't even bother having his back.  You'd thought the Hobby Lobby decision on employer-provided contraception coverage would make the Court an issue and arouse the base in the 2014 midterms - yeah, why did you lose the Senate then?  The truth is, Democrats have always gone soft on the issue of the Supreme Court and the federal judiciary and have had no strategy to appoint judges who are on their side.  When it comes to packing the courts, Republicans play chess.  Democrats play checkers.  
Well, Dems, you'd better learn how to play chess fast, because, regardless of what I've said here, this Supreme Court vacancy could still very well be for all the marbles!  If you wimp out here, you might as well Whig out.      

No comments: