Kennedy Hands Trump a Final Win

Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, which is good news for President Donald Trump. No matter how many porn stars Trump pays or longstanding allies and trading partners he needlessly alienates or essential institutions he seeks to undermine, his die-hard defenders can always make the strong argument to pre-Trump conservatives such as ourselves that we’re better of with him making Supreme Court picks rather than that awful Hillary Clinton woman.

Trump got his first chance to pick a Justice because Republican Senate majority leader Sen. Mitch McConnell — now widely reviled by the Trump-ian party as a squishy establishment type — ruthlessly held the seat open through the last year of President Barack Obama’s second term following the death of reliably conservative Justice Antonin Scalia, and Trump’s choice of the equally rock-ribbed Justice Neil Gorsuch further endeared him to his loyal supporters and earned begrudging praise from his party’s last skeptics. Kennedy’s retirement gives Trump an opportunity to replace him with someone even more rock-ribbedly conservative, and although we’re sure he’d appoint his abortion-loving appellate judge sister or idiot-sin-law to the seat if he thought he could get away with it, we’re also sure he’s shrewd enough that he’ll once again let the Heritage Foundation choose someone the fans will love and the conservative skeptics will begrudgingly respect and the Democrats can’t come up with any persuasive beyond-the-pale arguments about.

Kennedy was appointed to the court by President Ronald Reagan and confirmed with unanimous Republican support and several Democratic votes in the Senate, and he was not a judicial activist type who thought that whatever the consensus of liberal opinion believed was constitutional, but neither was he a reliably conservative vote in controversial cases. He acquired a reputation as the rare “swing vote” on the Supreme Court, and for whatever idiosyncratic reasons he frequently wound up on the winning side of many five-to-four decisions that wound up outraging the left some of the time and the right some of the time. In his final session he provided Trump with some much-needed five-to-four wins on the travel ban and a California case involving the free speech rights of anti-abortion advocates and another matter about the power of public unions, but his replacement will likely provide both the Trump-ian and pre-Trump conservatives with even more five-to-four wins over the coming decades.

There’s already concern on the left that the Supreme Court might even undo the 1973 Roe v. Wade decision that found a right somewhere in the penumbra of the Constitution for abortion in the first trimester and exceedingly complicated cases afterwards, which is well past the panic by point even by the left’s panicky standards, but they don’t have much power to stop it. They’ll put up a good fight in the Senate confirmation process, and do whatever they can with the filibuster rules the Republicans used to rely on in their days on the political desert, and make a not-quite-convincig argument that because Obama’s appointment had to await the next presidential election Trump’s pick should await the next mid-term election, but they’ll wind up with Trump winning a more conservative Supreme Court for a long while.

As much as we hate to see it redound to Trump’s political benefit, that’s fine with us. We’ve always believed the Constitution says what the words written in it say, and not whatever the current consensus of liberal opinion is, and we have to admit we do shudder to think of the nominees that awful Clinton woman would have chosen. If Trump’s picks prove the strict constructionists the Heritage Foundation claims they are they’ll probably uphold a special counsel subpoena of the president, and even if the Court does undo Roe v. Wade it will just set off 50 state legislative battles and countless street brawls which the rather recent and obviously insincere pro-life convert Trump will mostly lose.

No matter how stellar a pick the Heritage Foundation comes up with, however, we’ll still be infuriated by almost everything else Trump is doing.

— Bud Norman

Going Nuclear, and Why Not?

At this point it seems certain the Republicans in the Senate are going to employ the “nuclear option.” That’s not nearly so bad as it sounds, as it doesn’t involve any literal mass destruction or lingering radiation, but it’s nonetheless a sorry state of affairs for everybody.

If you’re not hip to the political lingo, the “nuclear option” means they’ll confirm Judge Neil Gorsuch’s appointment to the Supreme Court with a mere majority rather than the 60 votes required to end a filibuster. The Republicans currently hold more than a majority of votes, with all of them ready to confirm Gorsuch, but the Democrats have more than the 40 votes need to sustain a filibuster, with all of them seemingly ready to keep it up until hell freezes over or whatever else might follow the administration of President Donald Trump, so it seems a natural outcome. All the Republicans used to consider the filibuster rule sacrosanct back when a Democratic president was making Supreme Court picks and they held a filibustering plurality in the Senate, and at that point all the Democrats considered it a silly and not even constitutionally-mandated rule that needed to be “nuked” on behalf of whatever Democratic nominee happened to be up for consideration, so as usual both parties are a bunch of hypocrites. There’s still something to be said for that old rule about a super-majority being needed for such weighty matters, even from an old-fashioned Republican’s traditionalist perspective, but but parties have brought us to such a sorry state of affairs that it such niceties are no longer sustainable.

The Democrats are understandably miffed that the Supreme Court seat in question became vacant during the administration of Democratic President Barack Obama, yet his nominee — whose name was either Merrick Garland or Garland Merrick, we keep forgetting — never even got a hearing from a Republican-controlled Senate, but there was plenty of historical precedent and a very persuasive case for the Republicans’ obstruction of a lame duck president’s appointment. Nothing against Garland or Merrick or whatever his name was, who struck us as yet another disastrous post-constitutional Democratic appointment but about as good as you could hope for from an Obama administration that knew it couldn’t press its luck by that point, but the Republicans did have historical precedent and a persuasive case as well unbearable pressure from every last Republican voter in the country including ourselves. The Republican establishment thus forwarded the pick to Trump, who had ironically run on the argument that the Republicans needed to burn down the establishment that rolled over for everything Obama wanted to, and he chose the impeccably constitutionalist Gorsuch, which relieved even such still-skeptical-of-Trump Republicans as ourselves and of course outraged the Democrats.

All the nasty hearings in the Senate’s committees and sub-committees and friendly press appearances haven’t come up with any compromising information about Gorsuch’s character, and his constitution-means-what-it-says judicial philosophy isn’t all that controversial and has usually wound up on the majority of his lower-circuit opinions, and from a Democratic perspective he’s about as good as you could hope for from any old Republican much less a Trump administration prone to pressing its luck, but these days there’s an extra amount of Democratic Party pressure being brought to bear against anything Trump. We’re not so crazy about Trump our own Republican selves, as regular readers are well aware, but this seems a political miscalculation. If Gorsuch is rejected by a Democratic minority under the old rules they once defended they’ll be obliged to reject the next candidate, and the next one after that, and so on for at least four years of an eight-member Supreme Court, and at some point the Democrats will start polling even worse than Trump on the issue. With Gorsuch replacing the late and great-to-us-Republicans Justice Antonin Scalia his confirmation won’t change any decisions, and the Democrats can hope for more favorable conditions when the next Democratic seat inevitably opens, so we figure their best bet is to cede a battle and save that filibuster rule for a moment in the future when it will surely come in handy, and in the meantime let Trump continue to hog all the headlines.

Over the long term the best bet for the Republicans might be to retain that old filibuster rule they once relied on, but at the moment it doesn’t make any sense at all. Employing a merely figurative “nuclear option” isn’t going get much notice, and anyone who is paying attention but hasn’t already chosen sides will probably conclude that the Democrats are just dead-set against Trump even if he turns out to be right about something. The next vacancy on the Supreme Court will probably be one of those post-constitutitionalist Democrats, which raises the stakes, but the betting death-pool odds have the Republicans still holding on to Senate Majorities and even the White House when that happens, and there’s a shot that the Republican establishment will still be around for that, and the Democrats aren’t going to be any bi-partisan mood soon, so now’s as good a time to go “nuclear” as any.

There’s still something to be said for gaining enough bi-partisan support for something as a Supreme Court Justice, and it pains our traditionalist Republican souls to let it pass, but these are partisan times and any establishment has gotta do what its gotta do. We just hope there’s enough establishment left when the next seat comes up that there will be another Gorsuch.

— Bud Norman

Gorsuch and Nonesuch

So far President Donald Trump’s travel ban is still being held up in court, his repeal-and-replace plan for health care seems lacking some crucial Republican votes, the budget proposals are widely opposed and the “tweeted” accusations of treason are getting much ridicule and little support, but at least the nomination of Judge Neil Gorsuch to the Supreme Court is going well.

The Democrats and the rest of the left are doing their best to stop it, as tradition requires the opposition party to do, but they don’t seem to be having much luck. They’ve objected to the fact that Gorsuch is an admitted “originalist” in his judicial philosophy, but that basically means he believes the Constitution says whatever a plain reading of it written words say, and ever since Franklin Roosevelt tried to pack the court the Democrats have had a hard time time selling the idea it should say whatever they want it to say at any given moment. There have been no revelations of financial entanglements or college dope-smoking incidents or any of the other assorted scandals that have sunk past nominees, his long history of voting with majority and unanimous decisions during a long tenure as a circuit court judge makes it hard to cast him as any sort of scary extremist, and his performance in the confirmation hearings has been as flawlessly careful and noncommittal and yet exceedingly charming as any we can remember. The Democrats have been frustrated that Gorsuch wouldn’t pre-judge any hypothetical cases for them, just as the Republicans were when they grilled past Democratic nominees, but we don’t expect that the general public will mind that Gorsuch has been answering all the questions exactly as Supreme Court nominees are supposed to do.

The Washington Post’s Dana Milbank was reduced to complaining that Gorsuch seemed all too reasonable and downright personable during the hearings, and was sure that such “archaic phrases” as “goodness” and “since I was a tot” and “give a whit” would only be used an Eddie Haskell sort, who was a smarmy character on “Leave It to Beaver” that only the most archaic pop culture commentators remember. The late-night comedy program “The Daily Show” and its African host sneered that such expressions showed how very white Gorsuch is, but we doubt that most Americans would find that a disqualifying quality in a Supreme Court nominee and we’re quite sure that Trump’s most loyal supporters would find it endearing. Of the thousands of cases Gorsuch have heard the Democrats seized on one where he voted against a truck driver who had violated company policy and wound up frozen as a result and then sued over being fired, but of course the case was complicated and not the sort of thing that be easily conflated into a coming reign of judicial terror.

All the late night comics and the rest of the Democrats have had a far easier time scaring people about the rest of what Trump is to, but they inadvertently allowed Gorsuch to reassure the public about that. He’d already been quoted by anonymous sources as telling Senators that he was “disheartened” by Trump’s attacks on a “so-called judge” and the authority of the judiciary, but reiterated the sentiment under oath, carefully declined to answer any questions about how he might rule in a hypothetical case involving Trump and the Emoluments Clause of the Constitution or any of the other many things that might very well come up in the next four years, and somehow left a clear impression that Trump won’t be able to count on him if the facts and the law of a case favor the other side.

That willingness to defy Trump, along with all the aw-shucks demeanor and apparent reasonableness, have convinced some of Trump’s supporters that he’s picked another one of those squishy Supreme Court Justices that more establishment sort of Republicans have been picking for decades, and they’re still holding out for someone more snarling, but we doubt they’ll derail the nomination. Meanwhile all the Democrats are still made that President Barack Obama’s pick for the post, whose name was Merrick Garland or Garland Merrick or something, didn’t get a confirmation hearing at all, because it was blocked the Republican congressional leadership that all of Trump’s most avid fans hated for caving into everything Obama wanted, so it would be fun for almost everyone if a Supreme Court Justice Gorsuch did wind up ruling against some Trump overreach.

All the big press outlets seem resigned to Gorsuch’s nomination, and mostly unwilling to expend any of their diminishing capital of credibility on trying to portray him as a scary sort of extremist who’s going to bring back Jim Crow and back-alley abortions and all the stuff they once threw at Judge Robert Bork, whose last name is now a verb for such character assassination, so we expect this will be a win for Trump. That’s fine by us, and if it leads a few losses for Trump down the road that will also be fine.

— Bud Norman