Donald Trump and the Supremes
If there is anything we have learned in the last week or so, it is that elections- presidential elections- really do matter. This is especially true, given the “teeter-totter” balance amongst the Supreme Court which, more often than not, decides contentious cases on a 5-4 margin. Just within the last two weeks, the Supreme Court decided:
- that the state cannot force a baker to make a wedding cake for a gay couple, if doing so violates a religious tenet held by the baker, pursuant to the First Amendment’s freedom of religion;
- that public sector union membership and remission of dues by governmental employees, for that membership as payroll deductions, cannot be compulsory and must be consented to affirmatively by each and every employee, pursuant to the First Amendment’s freedoms of speech and assembly;
- that organizations which advocate and support right-to-life alternatives to abortions cannot be compelled by the state to offer either abortion counseling, abortion referral or abortion information, pursuant to the first amendment’s freedom of religion;
- that state governments retain the right to purge voter registration rolls, based upon four years of voter non-participation and failure to respond to notices from the state’s election commission;
- that the President of the United States has the constitutional authority to determine under which circumstances immigration from specific countries is controlled or proscribed, pursuant to his powers as chief executive.
In each of these rulings, a flip of a single vote (or two) would have resulted in the opposite ruling being made. In other words, if the Senate under Majority Leader Mitch McConnell (R-KY) had violated precedent and the Joe Biden (D-DE) “rule,” by allowing Obama-appointed Merrick Garland’s nomination to proceed during a presidential election year, or if Hillary Clinton had won the 2016 presidential election, these rulings would have gone the other way.
Yesterday, June 26th, the very “fulcrum beneath the teeter-totter” in each of these decisions, Justice Anthony Kennedy, went to see President Trump as a courtesy call in advance of his announcement that he is retiring immediately, concurrent with the end of the Court’s springtime term. It was Kennedy who functioned as the unpredictable “swing vote” in a host of controversial decisions during the last three decades, and in doing so, his credentials as a conservative swayed back and forth, as well. In reply, the President thanked the retiring Justice for his service to the Court, going back to Kennedy’s nomination by then-President Ronald Reagan in 1987, and also thanked Kennedy for allowing him to name his replacement during his own term as President- again reminding us that presidential election have consequences and that resulting Supreme Court nominations can shape the third branch of the federal government for decades.
In an unprecedented stroke of pure brilliance during the 2016 presidential campaign, then-candidate Donald Trump published a list of twenty judges and former jurists, from whom he would select future nominees to the high court. Since his run for the White House, the President has added five names to the original list, and it will be among these couple dozen- including Senator Mike Lee (R-UT) and Lee’s brother, a judge in his own right, from whom the President will make a decision. Each and every one of the men and women on Trump’s list is a constitutional constructionist, preferring to rule on the basis of what the Constitution actually says, as in the case of Justices Alito, Gorsuch, Thomas, and to a lesser extent Roberts, and as opposed to activist judges (the preferred choice of liberals) who attempt to create law from the bench, as is the case of Justices Breyer, Bader-Ginsburg, Kagan and Sotomayor.
So, Trump’s decision will be a crucial one, and the nomination’s voting which Senate Majority Leader McConnell has already announced will take place in the early autumn, prior to the mid-term elections in November, will make for quite a show in the United States Senate.
Senate Minority Leader Chuck Schumer (D-NY) is already posturing, insisting that the nomination be held up until after the mid-terms, but even Schumer knows that he has no standing nor any legitimate reason for attempting to delay this nomination. Save for the remote chance that Trump’s nominee is tripped up in hearings by Democrats on the Senate Judiciary Committee, Trump will get his second Supreme Court pick.
Given the fact that Justices Breyer and Bader-Ginsburg are both in their eighties, it can be reasonably assumed that their respective retirements will provide the next Supreme Court vacancies and, if Donald Trump wins re-election in 2020, he will have at least two more opportunities to select their replacements. If this indeed happens, Trump will have been given a very rare opportunity to name four, or perhaps even five of the nine Justices on the Supreme Court, something only Presidents Washington and Franklin Roosevelt were accorded.
So, while Senator Schumer can sing You Can’t Hurry Love to the top of his lungs, it is Donald Trump and the Supremes who will hit the top of the charts, and thus change the direction of the Supreme Court for a long time to come- yet another reason his voters elected him in the first place.
Once again… advantage, Trump.
-Drew Nickell, 28 June 2018
© 2018 by Drew Nickell, all rights reserved.
author of “Bending Your Ear- a Collection of Essays on the Issues of Our Times”
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