Sticking with my general rule of making the subject of the Sunday article the biggest story of the week just ended I had planned on a different article for today. It is Thursday morning as I write this but I find it difficult to believe that a story more impactful than this will emerge even though the event took place on Wednesday afternoon. I speak of the retirement of Supreme Court Associate Justice Anthony Kennedy.  

In recent years the Supreme Court has basically been a 4-4-1 situation; four justices on each the right and left with Kennedy as a somewhat fair arbiter of the law. That analysis is not quite accurate but it was the conventional wisdom. If you take an honest look at the majority of his swing vote decisions he was largely predictable. He tended to side with the liberals on social issues and with the conservatives on electoral issues. Remember Kennedy is a Republican and was nominated for the Court by Ronald Reagan.

Count me among those angered by the Mitch McConnell led effort to purloin the Supreme Court seat currently held by Neil Gorsuch. In that case the bottom line was that Gorsuch replaced Antonin Scalia body for body. Both are right wing extremists; the only difference being that Gorsuch effectively lengthened Scalia’s term by thirty years. In the short run nothing changed. In the case of Kennedy, Trump is certain to nominate another hard line right winger changing the makeup of the Court to 5-4. The only change of getting a fair hearing is if Chief Justice John Robert were more worried about the legacy of the Roberts Court than doing what he was put on the Court to do (by George W. Bush). Just the other day I heard a sad comment attributed to a veteran member of Congress who wished to remain anonymous who said that the Court was now as partisan as the Congress. In order for our system to work judges, especially Supreme Court justices, need to be umpires calling balls and strikes to the best of their ability not partisan hacks looking to spin a situation to match their philosophy.

With the recent Senate rule change – instituted by McConnell to get Gorsuch confirmed – exempting Supreme Court nominees from the filibuster there is basically nothing the Democrats can do to slow down the process. Their out of the box strategy is to invoke the McConnell Rule and demand that the seat not be filled until after the November elections ala the Garland non-consideration. Considering the current situation that is little more than a nice try.

My prediction is that Trump will shortly name a nominee and that Chuck Grassley’s Judiciary Committee will hold hearings soon thereafter. The Democrats will howl but the hearings will commence as scheduled. During those hearings partisanship will be on obvious display. I expect sharp and interesting questioning from Democrats Diane Feinstein, Kamala Harris and Cory Booker. Unless the nominee seriously stumbles they will advance out of committee on a party line vote. Mitch McConnell will then promptly schedule a vote on the Senate floor. Again we’ll hear some great floor speeches from Democratic Senators (largely sans a significant audience of their peers). This will be the Democrats only reasonable chance to stop the nominee. Assuming John McCain’s absence, all the Democrats will have to hold together (a reasonable but not ironclad assumption) and at least one Republican will have to join them in turning thumbs down. I only see two reasonable prospects: Susan Collins and Lisa Murkowski. Both have displayed the courage to defy their Party in the past for the good of the country as long as they can be on the winning side of the vote. I cannot fault them on that last part. They are politicians and breaking with your Party to cast a meaningless losing vote is not prudent behavior for a politician – it’s all downside.

Stopping the initial nominee is only meaningful if in the long run if the Democrats take back the Senate in November. (The newly elected Senators would not take their seats until January.) I still think the Republicans will retain control of the Senate which makes this entire exercise futile in the long run. However, I truly feel the Democrats have a more legitimate chance of taking back the Senate in 2018 than Trump had of winning the presidency in 2016 and we all remember how that turned out.

Getting into the weeds a bit, remember a McCain absence makes a tie vote – which Mike Pence could break – mathematically impossible. That is important. There are other unlikely and wild scenarios like a Senator(s) passing or one or more Senators casting an unexpected vote.

If the Democrats can prevent confirmation of a nominee before November and subsequently take back the Senate I think the public outcry would be significant enough to prevent confirmation during the lame duck session.

Here is something I find interesting: McConnell cancelled part of the August Senate recess. The conventional wisdom was that McConnell was trying to put additional pressure on vulnerable Senate Democrats running for reelection this year by taking away campaigning time. I’m certain that was true. My question is did McConnell have advance notice of the Kennedy retirement? Keeping the Senate in session longer gives him more time to get a nominee through.

If you are asking what you can do the answer in the short run is activism. This is especially true if you vote in Maine or Alaska. I am not so naïve as to think that most Republican Senators can be flipped, but a bunch of angry consitituents in their home and Washington offices will get their attention and perhaps keep them somewhat in check. Getting involved in a 2018 Senate race(s) is another answer.

It is my normal practice to make several Senate endorsements. With this situation in mind expect a few more and sooner as opposed to later. Republicans have concentrated on the courts for years while Democrats have largely ignored their significance; let’s hope this is the wakeup call Democrats needed before we lose Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor or Elena Kagan during a Republican administration.

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