Okay, I didn't see that coming. But then I don't appear to have been alone. So, Anthony Kennedy is leaving the Supreme Court. Various thoughts.
First -- Aghhhhhh.
Fine, enough of that. That pretty much covers it all. And so we move on.
For all the observations over the years that Kennedy was the swing vote -- and he was -- in more recent years he appears to have been swinging much more to the right. I saw a graphic yesterday that said of the 14 decisions this year where the Supreme Court was split 5-4, they all were conservative with Kennedy voting with the right wing. That's not to say he didn't vote more moderately or even liberally on occasion. But at least for the past year, those votes came when they weren't as critical to change the result. His last two votes were particularly troubling for liberals -- allowing the limited travel ban on Muslims and permitting employees of "public sector" jobs that are covered by unions (like teachers, police officers and other public employees) to withhold dues while still getting protections from the contracts negotiated. (Gee, what a swell idea, which sort of contradicts the very point of unions -- I mean, hey, why join a union if you can get the protections?)
This isn't to say that whoever Trump names won't be far more reactionary and not ever a swing vote. But then, if you're always swinging right these days, it doesn't matter significantly if that fifth vote is a quiet, tentative aye, or a booming AYE!!!! It's still an aye.
I know there was a lot of discussion in the media yesterday about what action Democrats can take about this upcoming nomination, to perhaps get the votes that will allow them to do what Republicans did to block Merrick Garland. An aye for an aye, as it were... A couple things: first, that seems a long shot given that they're in the minority, whereas Republicans were then in the majority. Added to that is there are probably a few moderately conservative Democratic senators up for re-election this fall where blocking a conservative nominee would be seen as problematic in their home states. So, they might vote yes -- meaning that Democrats would have to get even more Republicans to flip and vote no in order to put the nomination on hold. That's possible, if those few Republicans can be convinced it means losing Roe v. Wade otherwise -- but it's another long shot. Which leaves convincing Republicans to live by their own sick, made-up rule of not voting on a Supreme Court nominee right before an election. And that, of course, is also a long shot. Not only on basic principle, asking Republicans to act against their own self interest and country -- but also, as much as Democrats have been trying to make the case that the two situations are the same...they aren't the same. Republicans reprehensibly held off voting on Merrick Garland because they made the then-empty case that whoever was elected president should get to name the next nominee -- not that the next elected-Senate should be allowed to vote on the next nominee.
Which brings up another point -- let's say Democrats somehow, someway do manage to hold off the next nominee until after the mid-term election. A) By all accounts, people aren't expecting Democrats to flip the Senate, so then we'd be right back where we are now. And B), if for some reason Democrats do take the Senate, do they expect to not approve a nominee for two more years? And that's beyond the the additional next six months until the next Senate is sworn in Perhaps the "dream" is that if they unexpectedly manage to take the Senate, Trump will then feel compelled to name someone more like Anthony Kennedy, a swing Justice, rather than a doctrinaire conservative. It's possible, sure. But toss in yet another long shot.
There are a LOT of long shots here. And when you get that many piling up, your really shouldn't expect them to come through. Traveling in the land of "If...and if...and if...and if...and if this all happens, then....maybe, possibly conceivably this could happen," is no way to fly.
So, it seems pretty likely that Trump will get his nominee. The only serious hope is that he or she is not profoundly, unbendingly conservative -- or head-bangingly pathetic (like if he does nominate "Judge Jeanine" like he supposedly wanted to before endding with Neil Gorsuch). which is what all the Democratic battling now should hope to accomplish.
Left out of much of the discussion I heard yesterday was mention of what I think is even a worse situation. (And yes, how about that?! There is an even worse situation.) And that's what happens during the next 2-1/2 years if Ruth Bader Ginsberg leaves an opening. If that happens, the closer it is to the next presidential election then the more hope there is that it could be held off replacing her. Admittedly, the concept of a Ginsberg opening is yet another "if" -- but that's a serious possibility, long discussed because of her age and health. And if it occurred, that would mean replacing, not a fairly-conservative swing vote with a serious conservative, but one of the most liberal voices the Court has had. I wish her the best. I wish us all the best.
And as for "the best" -- the best I can see coming from all this are two things. The first is, as mentioned, that Democratic senators can put up a good another fight to make the White House see that a somewhat more moderately-conservative nominee is named. And the second is that Trump having this nominee to name (and possibly two, eventually) will grippingly galvanize liberals, progressives and independents in a way that will guarantee not just a Blue Wave but a Blue Tsunami and maybe even flip the Senate (which would offer a protection for that other opening, should it come). After all, this is really significantly more a Democratic election issue than a Republican one. You aren't likely going to get Republican voters rushing to the polls in a mid-term election to defend a Supreme Court nominee they already have. But you are likely to get Democrats horrified and with their hair on fire whatever happens in the months before the election -- whether the nominee is already confirmed, which makes a Democratic House and Senate all the more necessary, or whether it turns out the nominee isn't yet confirmed...which makes a Democratic House and Senate almost all the more necessary, or maybe more so.
There isn't a "good view" on this, unfortunately. But there are some possibly good takeaways that can come from it. And driving Democrats (and perhaps independents) to the polls in massive droves is the one, possible "if" that could be very good.
First -- Aghhhhhh.
Fine, enough of that. That pretty much covers it all. And so we move on.
For all the observations over the years that Kennedy was the swing vote -- and he was -- in more recent years he appears to have been swinging much more to the right. I saw a graphic yesterday that said of the 14 decisions this year where the Supreme Court was split 5-4, they all were conservative with Kennedy voting with the right wing. That's not to say he didn't vote more moderately or even liberally on occasion. But at least for the past year, those votes came when they weren't as critical to change the result. His last two votes were particularly troubling for liberals -- allowing the limited travel ban on Muslims and permitting employees of "public sector" jobs that are covered by unions (like teachers, police officers and other public employees) to withhold dues while still getting protections from the contracts negotiated. (Gee, what a swell idea, which sort of contradicts the very point of unions -- I mean, hey, why join a union if you can get the protections?)
This isn't to say that whoever Trump names won't be far more reactionary and not ever a swing vote. But then, if you're always swinging right these days, it doesn't matter significantly if that fifth vote is a quiet, tentative aye, or a booming AYE!!!! It's still an aye.
I know there was a lot of discussion in the media yesterday about what action Democrats can take about this upcoming nomination, to perhaps get the votes that will allow them to do what Republicans did to block Merrick Garland. An aye for an aye, as it were... A couple things: first, that seems a long shot given that they're in the minority, whereas Republicans were then in the majority. Added to that is there are probably a few moderately conservative Democratic senators up for re-election this fall where blocking a conservative nominee would be seen as problematic in their home states. So, they might vote yes -- meaning that Democrats would have to get even more Republicans to flip and vote no in order to put the nomination on hold. That's possible, if those few Republicans can be convinced it means losing Roe v. Wade otherwise -- but it's another long shot. Which leaves convincing Republicans to live by their own sick, made-up rule of not voting on a Supreme Court nominee right before an election. And that, of course, is also a long shot. Not only on basic principle, asking Republicans to act against their own self interest and country -- but also, as much as Democrats have been trying to make the case that the two situations are the same...they aren't the same. Republicans reprehensibly held off voting on Merrick Garland because they made the then-empty case that whoever was elected president should get to name the next nominee -- not that the next elected-Senate should be allowed to vote on the next nominee.
Which brings up another point -- let's say Democrats somehow, someway do manage to hold off the next nominee until after the mid-term election. A) By all accounts, people aren't expecting Democrats to flip the Senate, so then we'd be right back where we are now. And B), if for some reason Democrats do take the Senate, do they expect to not approve a nominee for two more years? And that's beyond the the additional next six months until the next Senate is sworn in Perhaps the "dream" is that if they unexpectedly manage to take the Senate, Trump will then feel compelled to name someone more like Anthony Kennedy, a swing Justice, rather than a doctrinaire conservative. It's possible, sure. But toss in yet another long shot.
There are a LOT of long shots here. And when you get that many piling up, your really shouldn't expect them to come through. Traveling in the land of "If...and if...and if...and if...and if this all happens, then....maybe, possibly conceivably this could happen," is no way to fly.
So, it seems pretty likely that Trump will get his nominee. The only serious hope is that he or she is not profoundly, unbendingly conservative -- or head-bangingly pathetic (like if he does nominate "Judge Jeanine" like he supposedly wanted to before endding with Neil Gorsuch). which is what all the Democratic battling now should hope to accomplish.
Left out of much of the discussion I heard yesterday was mention of what I think is even a worse situation. (And yes, how about that?! There is an even worse situation.) And that's what happens during the next 2-1/2 years if Ruth Bader Ginsberg leaves an opening. If that happens, the closer it is to the next presidential election then the more hope there is that it could be held off replacing her. Admittedly, the concept of a Ginsberg opening is yet another "if" -- but that's a serious possibility, long discussed because of her age and health. And if it occurred, that would mean replacing, not a fairly-conservative swing vote with a serious conservative, but one of the most liberal voices the Court has had. I wish her the best. I wish us all the best.
And as for "the best" -- the best I can see coming from all this are two things. The first is, as mentioned, that Democratic senators can put up a good another fight to make the White House see that a somewhat more moderately-conservative nominee is named. And the second is that Trump having this nominee to name (and possibly two, eventually) will grippingly galvanize liberals, progressives and independents in a way that will guarantee not just a Blue Wave but a Blue Tsunami and maybe even flip the Senate (which would offer a protection for that other opening, should it come). After all, this is really significantly more a Democratic election issue than a Republican one. You aren't likely going to get Republican voters rushing to the polls in a mid-term election to defend a Supreme Court nominee they already have. But you are likely to get Democrats horrified and with their hair on fire whatever happens in the months before the election -- whether the nominee is already confirmed, which makes a Democratic House and Senate all the more necessary, or whether it turns out the nominee isn't yet confirmed...which makes a Democratic House and Senate almost all the more necessary, or maybe more so.
There isn't a "good view" on this, unfortunately. But there are some possibly good takeaways that can come from it. And driving Democrats (and perhaps independents) to the polls in massive droves is the one, possible "if" that could be very good.
RSS Feed