For all of the unnecessary drama and BS we have to put up with having Donald Trump as President, this week is clearly making it all quite tolerable. As least if you are a Constitutional libertarian like myself.
The past two days, the US Supreme Court issued a delightful troika of 5-4 rulings that placed the Constitution above politics du jour. Predictably, the left is highly pissed. And earlier today came another bit of news from the nation’s highest court. A crucial swing vote in all three of these rulings announced his pending retirement.
Justice Anthony Kennedy (pictured, left) was a Reagan appointment who ticked off conservatives for years by adopting a moderate stance on the bench. However he was the swing vote for decidedly conservative rulings this week on issues ranging from President Trump’s Travel Ban, to California Life Centers, and (today) on Public Section Labor Union restrictions.
Ordinarily the left would cheer the retirement of such a justice. But Kennedy had swung left on many key votes over the past thirty years. And of course there is the nettlesome issue of Donald Trump being the one to nominate his replacement.
Whoever has had the President’s ear on judicial appointments is doing the US a greater service than they will ever realize. In addition to the eminently-qualified Neal Gorsuch appointment last year, Trump’s appointments to District and Appellate Courts include mostly judicial originalists. This will serve as an additional check to governments who are increasingly prone to doing what’s popular as opposed to what is Constitutional.
For rank-and-file Democrats, it is hard to imagine a worse week…other than that little thing that happened in November-2016. The Supreme Court has been their primary vessel to implement much of the social change they so covet. The other two branches have acted (as they should) as a check to each other on implementing significant changes. The high court, though, requires only five votes to usher in significant swings.
When I ponder the number of 5-4 votes we’ve had in the Supreme Court on several crucial issues over the years, it makes me shudder. I have said many times the fact that the Heller decision (on gun rights) was 5-4 mystified me to no end. We were this close to losing what I consider basic Constitutional protections. It’s been kind of a running trope over the years to bank on the “swing votes” on the Senate—how would Roberts and Kennedy rule? The determination of basic Constitutional protections should NOT come down to one or two people—but it does. God help us, it does.
I understand Democrats being reflexively pissed about these latest rulings—coming as they did with Neil Gorsuch in the majority. This was supposed to be THEIR pick. When Merrick Garland’s nomination was held up by the Senate in 2016 I’m sure many figured, “big deal. Once Hillary’s elected we’ll get an even BETTER nominee.” Alas, as I have been told many times over the past eight years, elections have consequences. And it is deliciously-satisfying that because of the unmitigated arrogance of former Senator Majority Leader Harry Reid, who introduced the “Nuclear Option,” Gorsuch’s appointment was a fait accompli.
Reid, the retired Senator from Nevada, may have been the most execrable politician of this generation. Given the amount of excrement that resides inside the beltway, that is a formidable achievement. He laid the foundation four years ago when he used Senate rules to end the filibuster option on all nominees except those for the highest court in the land. His explanation, “it had to be done.” At the time, things seemed right rosy for Democrats. One of theirs was in the White House, and they had called the shots in the Senate for many years.
Reid had operated the upper chamber as his personal fiefdom; refusing to take action on bills; including crucial budget bills—while using the cloak of immunity provided by his position to make slanderous claims about others. He was a malicious coward. That his legacy will be largely defined by making his party practically impotent during a crucial point in history is deliciously satisfying.
And now with Kennedy’s retirement; Reid’s failure will be even MORE evident. I think if the Democrats had waited for another nominee to oppose last year during the Gorsuch debate, moderate Republicans would have been less likely to hit the nuclear button. Trust me…there are MANY more federal judges out there with a—shall we say—“clearer” record on abortion and other hot-button issues. Now Trump will look to one of them. And Democrats’ only hope will be to persuade two Republicans to vote no. Reid’s intransigence has left Democrats politically impotent in what is shaping up to be a crucial transition period for the most powerful element of the judicial branch.
It was already a good week for Constitution-lovers like myself. Now it is getting better. So go ahead, Trump. Fire off another silly and stupid tweet. I don’t give a spit. Just make sure you continue to nominate good judges.