Today, Justice Anthony Kennedy announced that he will retire from the Supreme Court of the United States, effective July 31st. Kennedy has been an Associate Justice for just over thirty years now, and his moderate conservative-ish voice made him a swing vote on the court of nine. Upon his retirement, Kennedy will likely be replaced by a far-right conservative justice courtesy of Donald Trump. And there is nothing the Democratic Party can do about it.
Kennedy’s most consistent philosophy is that personal liberties must be protected, proven when he voted in favor of the right to firearm-based self-defense in District of Columbia v. Heller, the right to spend money as a form of free speech in Citizens United v. FEC, the right to a regulated abortion in Planned Parenthood v. Casey, and most famously the right for same-sex marriage in Obergefell v. Hodges. If it weren’t for Justice Kennedy’s focus on personal liberties, the latter two civil rights victories would not have been possible. Obviously, it hasn’t always worked out well for liberals, but considering that Ronald Reagan put Kennedy on the bench, any victory is worth clinging on to. A Kennedy departure tilts the ideological balance of the court closer to five conservatives versus four liberals, with Chief Justice John Roberts becoming the closest thing the court will have to a swing vote. I doubt a new court would actually overturn any landmark civil rights cases, but I certainly doubt it’d approve new ones.
So, what can the Democratic Party do about it?
Pretty much nothing.
Nowadays, only a simple majority is required to confirm a nominee to the Supreme Court. Luckily for Mitch McConnell and Donald Trump, the Republicans have a majority, albeit an incredibly slim one. Under the traditional system of SCOTUS confirmations, President Trump would have had to satisfy at least eight moderate Democrats by nominating a moderate similar to Anthony Kennedy. However, Mitch McConnell decided that system was inconvenient in 2017 and threw it out to get far-right conservative Neil Gorsuch through the Senate. That happened in spite of solidified Democratic opposition, and that opposition only manifested because McConnell snubbed President Obama and denied SCOTUS nominee Merrick Garland the basic courtesy of public hearings in 2016.
The Senate is currently divided 51-49 in favor of the Republicans, with Republican Mike Pence acting as a tiebreaker. With the illness of John McCain, that division narrows slightly to 50-49 (+ the tiebreaker). Even if every single Senate Democrat votes to block the next Supreme Court nominee (which is doubtful), they will still need at least one Republican to break ranks and vote against the nominee as well. There is a (small) possibility that the Democrats could find a way to delay this nomination until after the midterms, but that would be incredibly unwise. Let’s map this scenario out, assuming Donald Trump names a far-right conservative:
Would every Democrat vote against Kennedy’s replacement?
Doubtful. Ten Senate Democrats are running for reelection in states that Donald Trump won, five of whom are particularly vulnerable – Montana’s Jon Tester, Missouri’s Claire McCaskill, North Dakota’s Heidi Heitkamp, Indiana’s Joe Donnelly, and Florida’s Bill Nelson. If they decide to vote against Donald Trump’s nominee, they could end up energizing their Republican opponents at a time when their reelections depend on low Republican turnout. Even less vulnerable Democrats (West Virginia’s Joe Manchin, Wisconsin’s Tammy Baldwin, and Minnesota’s Tina Smith) might want to cross party lines and save their reelection bids. In the 2016 election, Republicans were able to convince thousands of disaffected Republicans to hold their noses and vote for Donald Trump in order to put a conservative on the Supreme Court. A repeat of that this November could be an absolute disaster for vulnerable Democrats.
It’s also worth noting that there are four Democrats trying to reclaim Senate seats from vulnerable Republicans: Nevada’s Jacky Rosen, Arizona’s Kyrsten Sinema, Tennessee’s Phil Bredesen, and Texas’s Beto O’Rourke. If the Republicans get hyped up about Democratic obstructionism, those bids could melt away and Republicans could secure their legislative majority for another two years.
Last year, Neil Gorsuch sailed to confirmation with the help of three vulnerable Democrats: Manchin, Heitkamp, and Donnelly. Considering that a unified front of opposition would be damaging to themselves and hopefuls like Rosen, Sinema, and Bredesen, I wouldn’t be surprised if Chuck Schumer lets the Democrats break ranks and vote strategically. Since Kennedy’s replacement is likely to pass the Republican-controlled Senate anyways, the Democrats may as well do damage control and ensure that they can still take back the Senate in the midterms.
Okay, let’s say all 49 Democrats vote against Kennedy’s replacement. Would a Republican join them?
Again, doubtful. Last year, 51 out of 52 Republicans voted for the confirmation of Neil Gorsuch. The 52nd, Johnny Isakson, wasn’t present because he was recovering from back surgery but probably would have voted for Gorsuch anyways. There are only 50 Republicans in the Senate this year because of John McCain’s illness and Doug Jones’s special election victory, but all 50 of those Republicans have proven their willingness to vote for Neil Gorsuch. I’m not making a very big leap by assuming they’d be willing to vote for a nominee of a similar ideological background to Gorsuch, and in that case Kennedy’s replacement would sail through the Senate (although it would require a tiebreaker from Mike Pence). Frankly, most Republicans have no reason to vote against a conservative judicial nominee – it’s the one topic that all Republicans have in common with President Trump’s otherwise unorthodox policies.
Even if another Republican tried to break ranks, Donald Trump would respond with a flurry of personal, nasty, and politically harmful insults. That Republican would lose all of his/her political support, as Jeff Flake, Bob Corker, and John McCain all found out. It’s unlikely the Republican Party would do anything to defend that hypothetical defector, because nobody in the party has enough of a spine to stand up to Donald Trump and survive. Ten years ago, John McCain was the standard-bearer of the Republican Party, an all-American war hero who understood the value of service, sacrifice, and experience. Now he is a pariah with a 20% approval rating from his own party, given only meaningless lip service from Republicans who claim to adore McCain but place President Trump on a pedestal anyways. Donald Trump continues to mock his years of imprisonment and insulted him in very personal terms, and his his staff in the White House are no better. Still, the party has done nothing to stand up a man who used to be their leader. Why would they bother for anyone else, especially a defector who would be ignoring his/her own ideological background?
It’s doubtful any Republican could stand against a nominee they have common ground with, given the McCain example. Senator Jeff Flake is the most promising, because he has already promised to block all judicial nominees until the Senate gets rid of President Trump’s tariffs. Given his inability to actually stand up (and stay up) on any other issue, and the enormous gravity of the Supreme Court, I don’t think his promise carries much weight. However, it’s not completely out of the question – Flake is immune to criticism from Donald Trump because Trump already destroyed Flake’s career. Technically, it is possible for Jeff Flake to put a halt to Kennedy’s replacement. I just don’t think it’ll happen.
So, what happens if 1 Republican + 49 Democrats vote against Kennedy’s replacement?
The most likely outcome is a waiting game in which the Democrats lose. Even if 50 Senators vote against Kennedy’s replacement, that doesn’t mean Donald Trump will cave and nominate a moderate liberal for the bench. It just means Donald Trump will wait for the midterms in the hopes of attaining a stronger Republican majority, just as Mitch McConnell used cheap obstructionism for 13 months until Donald Trump could take office and nominate an extreme conservative.
As I said earlier, the reelection bids of various vulnerable Democrats (and the uphill climbs of various Democratic challengers) depend on keeping Republican turnout low. By playing the waiting game, Republican voters would have a tangible reason to go to the polls: to ensure another conservative reaches the Supreme Court. If that happens, Democrats can say goodbye to their dreams of a Senate majority, goodbye to stopping extreme partisan legislation, and goodbye to a possible trial on Russian collusion.
This sounds pretty unfair to me.
Somewhat. Under a system of regular order, Kennedy would probably be replaced by a moderate conservative that I (and most Democrats) could get used to. That system is gone, though, because it turns out Republicans care about the filibuster even less than Democrats do. As such, the Democrats are almost completely powerless to stop the Republicans. If I had to pick a number, I’d say 4 Democrats will actually vote for Kennedy’s replacement.
Don’t jump to the conclusion that this is entirely the fault of the Republican Party – it really isn’t. Democrats had a solid chance to take back the Senate in 2016, and indeed took back two seats, but low Democratic turnout was one of the factors that led to the defeats of Wisconsin’s Russ Feingold, Indiana’s Evan Bayh, Pennsylvania’s Katie McGinty, and Missouri’s Jason Kander. Had even one of those candidates defeated their Republican opponents, the Senate would be evenly split right now (with McCain ill at home, the Senate would actually be controlled by the Democrats). Democrats lost the presidential vote in Michigan, Wisconsin, and Pennsylvania too, and that could have been avoided if ~78,000 people had turned out to vote for Hillary Clinton in those states, myself included (I voted for Clinton in Maryland when I should have voted in Michigan). Hell, if all the people who voted for Jill Stein decided to vote for Hillary Clinton, we would be dealing with a Clinton presidency right now.
This is why your vote matters, and more importantly why your vote in specific states matters. I don’t like Mitch McConnell’s cheap tricks any more than the average voter, but I know this could have been avoided if voter turnout had been even a little bit different in 2016. There is no easy solution for Democrats, because it is almost certain that Donald Trump will be able to nominate a hardcore conservative to the Supreme Court no matter what they do. That’s the only reason I think a careful retreat is the “least bad” scenario.
By the time this post goes up, there will probably be a million different progressive voices demanding that Democrats fight until the bitter end on this issue, but I doubt that’d lead to anything besides a midterm bloodbath and a strengthened Republican majority. If that sounds disheartening, that’s because it is.
Since liberals probably need a little cheering up, let me remind y’all that General George Washington only fought ~14 separate engagements against the British, and lost 9 of them. When the British reclaimed New York in 1776, George Washington could have rallied his entire army to charge the British line with a “never surrender” mantra, but the British would have obliterated his forces. Instead, he wisely chose to retreat and fight only when he knew he could win or fight to a draw. Washington won the Revolution because he picked his battles, not because he dug his heels in despite being faced with clear defeat.
For the liberals who don’t feel particularly cheered, or the conservatives (hi) who want to celebrate this joyous day, here’s a video of some polar bears playing with a team of sled dogs.
Se beur oD trink oOur yvtlanie.