Justice Anthony Kennedy’s retirement is inarguably a game-changer. It will take some time and depend on who President Donald Trump picks as his replacement to see just how much.
For years now, Kennedy’s been the swing vote on a court closely divided along ideological lines. That only matters infrequently but it’s vitally important when it does, which is why conservatives are jubilant and liberals fearful. Both believe Trump’s next pick will give the court a solid majority composed of five strict constructionists, as they are sometimes called, who would alter American jurisprudence for at least a generation and probably more.
What both sides should remember is there are no guarantees. The right was in relatively the same boat in 1987 when Lewis Powell, a justice appointed by Richard Nixon, stepped down. Like Kennedy, Powell was a swing vote on the Burger Court. It was presumed the man everyone expected to replace him—former United States Solicitor General Robert Bork—would move the court to the right, cementing the victories of Reagan’s Revolution.
It didn’t work out that way. Bork was blown out of the water so badly by liberal activists and Senate Democrats his name actually became a verb referring to the mistreatment of presidential nominees. The failure of his nomination led, eventually, to Kennedy—at the time a judge on the Ninth Circuit Court of Appeals.
Kennedy was confirmed unanimously, 97-0, after the senators who opposed Bork so realized—after just three days of hearings—Kennedy would be a lot more like Powell, a moderating influence on the court—moreso than many Reaganites understood or wanted.
We’re at that point again today. President Trump has been meeting with prospective nominees and promised a decision by July 9. No one can be sure how many candidates are under consideration. The White House said at one point the list had been narrowed to five, but Trump has reportedly met with seven potential nominees and may see more before he announces his decision. That may all be part of a deliberate plan to keep people guessing as the rumor mill, which can be strangely reliable on such matters, continues to suggest it’s already come down to two, possible three finalists.
One is federal judge Amy Coney Barrett, who Trump put on the Seventh Circuit Court of Appeals. Another is Brett Kavanaugh, a George W. Bush appointee to the United States Court of Appeals for the District of Columbia Circuit. A third, whose name is just starting to appear, is Sixth Circuit Judge Raymond Kethledge who, like Kavanaugh and Justice Neil Gorsuch, is a former Kennedy law clerk.
The GOP’s Senate majority is perilous, especially on high profile matters like a Supreme Court confirmation, which everyone thinks will change the court’s delicate balance. Two Republicans, Maine’s Susan Collins and Alaska’s Lisa Murkowski, are already voicing objection to any nominee committed to overturning Roe v Wade, the controversial decision that legalized abortion in 1972. The need to keep all the Republicans on board is paramount if the White House wants its first nominee confirmed. But does it?
What the White House needs to do in light of the current political reality is easy to see—if you’re not the one who has to make the decision. Is it better to go with a strong nominee that rallies the GOP base and risks losing, or go with someone who is more confirmable? Both options have political implications that could impact the control of the Senate and the future of the Trump agenda.
If Trump goes for a nominee who objects to Roe v Wade, then he has to bring some Democrats along to win confirmation of that nominee. To do that he has get the votes of senators under considerable pressure within their own party to vote No, applied by the progressives who now control the party, while the Republicans are trying to beat them in November.
To put it another way, how do you get Indiana’s Joe Donnelly or North Dakota’s Heidi Heitkamp or even Pennsylvania’s Bob Casey—whose record is not as consistently pro-life as he likes to pretend it is for the folks back home in his heavily Catholic state—to vote for a Trump nominee, when Trump himself is campaigning for their defeat in an election just months away?
Barrett has seven children. She became a hero to many when she stood up to Democrats who questioned her religious beliefs in her confirmation hearing. For that she’s presumed to be more aggressive and more ideological than some of the others under consideration. She’d rally the base, but could she win confirmation? Do you go with her, knowing you have other options if she’s defeated and it gives you a vote Republicans can use in the upcoming election?
Or do you go with Kavanaugh or Kethledge, both Bush 43 appointees to the federal bench and both former Kennedy clerks thought more likely to be bound tightly by precedent and, therefore, more likely to win the vote of every Republican in the Senate?
To make things more complicated, what if the GOP picks up a few Senate seats in November? A bigger majority weakens the influence of Collins and Murkowski and solves the problem created by John McCain’s continued absence for reasons of ill health. If you’re the White House, do you come out of the gate with a nominee you know will be a home run with the voters who put you in office? Or do you make confirmability the most important factor in considering who to nominate, knowing how many bites of the apple you have?
There is, after all, a slight chance the Democrats might, contra all current indications, take the Senate back in 2018. The new majority leader, New York’s Chuck Schumer, would likely keep the seat open—if it’s still open—as payback for what Mitch McConnell did when he refused to take up President Barack Obama’s nomination of federal judge Merrick Garland to fill the vacancy created by the death of Associate Justice Antonin Scalia.
The liberals will fight no matter who Trump picks. The quality of the nominee and how much of a game-changer he or she is perceived to be will influence how hard the right fights back. The folks focused on the ideology of the thing would do well to remember political considerations also matter. The court has continued to grow more conservative, if that’s the right word, even with Kennedy on it. Gradualism really is the order of the day on the high court. It’s built into its culture. Remember: It took 60 years to go from Plessy v Ferguson, which the court got wrong in 1896, to Brown v. Board of Education of Topeka, Kansas, which they got right. It’s important to remember that getting to the right place can take time.