Anthony Kennedy Retires

by
Robert Waldmann
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Anthony Kennedy will retire July 31. This gives Trump and Republican Senators a chance to nominate and confirm a fifth hard right justice. Already the Court has become extremely ideological and activist. Today it declared that Unions couldn’t require employers to pay the union a a fixed amount per worker, because that allegedly violated the first amendmenr rights of workers in unionized workplaces which disagree with the union leadership. This is Lochner v New York level right wing judicial activism

But it is nothing compared to what a court with Kennedy replaced by another justice similar to Gorsuch, Alito or Thomas. That court would almost certainly overturn Roe v Wade, probably declare affirmative action unconstitutional, and quite possibly reverse the gay marriage decision.

The vast majority of Democratic Senators who have spoken have said they won’t confirm a justice in this congress but will insist on a delay until senators elected November 2018 are seated. They note McConnell’s argument against considering Garland and quote, among other things, a tweet of his.

There are only 49 Democratic Senators. They need two Republicans (or one if McCain misses the vote). They also need Democrats up for re-election in red states to resist. Already Senator Donnelly of Indiana has begun to semi-break with Senate Democratic leadership. I’m sure the vast majority of Democrats will do what they can to block confirmation. It is possible that there will be two or three Republicans will agree. Sen Flake of Arizona already announced he is blocking judicial confirmations over tariffs and Cuba. A supreme court nomination is completely different, but Flake hates Trump and is not running for re-election. Sens Collins and Murkowski are pro-choice. The might block an anti-abortion nominee. Democratic victory is not likely but it is possible.

But this raises another issue. Yesterday it seemed much more likely than not that Republicans will have a majority in the next Senate. There are very few Republican seats up for election (the map is worse for the Democrats than any Senate map has been for any party in living memory). Republicans also always argue (often correctly) that recent events improve their political chances. In particular, they can count on conservatives (who might have sat out the election) voting against Roe V Wade.

This is relevant to strategy, because if Democratic Senators reduce their re-election chances by obstructing the confirmation, and then Republicans have a majority again, they will have paid a political cost for no gain.

On the other hand (I finally get to the point if any of this post) I think there are two important reasons that the crisis might help Democrats win the Senate. First, for decades there have been more single issue pro-life voters than single issue pro-choice voters, because Roe V Wade was there and seemed secure. Solid majorities support Roe v Wade. Now that it is clearly in great danger, it is likely that many pro Roe V Wage voters will vote on that issue alone so long as there is an open seat on the Supreme Court. Abortion is an issue in which a passionate minority has more political impact than a complacent majority. The pro Roe V Wade majority won’t be complacent anymore.

But I think there is another issue which might hurt Republicans even more. There is an absurd case in which red state attorneys general argue that the ACA is now unconstitutional after being modified by the Republican tax cut bill. The Trump Justice Department refuses to defend the ACA and says that protections for people with pre-existing conditions are now unconstitutional. This was already a huge gift to Democrats. Gigantic majorities support the protections. Voters are extremely focused on health care. On health care, they already trusted Democrats much more than Republicans. Lawyers say the plaintiffs’ arguments are nonsense, but it is very easy to argue that, since Trump agrees with the plaintiffs, he will will nominate a justice who will side with them. I would guess that Roberts would then save the ACA again, but I wouldn’t bet on it, and I don’t think voters concerned about pre-existing conditions would either.

It is possible to link the struggle over the Supreme Court to the struggle to protect people with pre-existing conditions. In fact, the Justice Department has undeniably linked the issues. This issue could determine control of the Senate, but it is more likely to be decisive if there is an open seat. Vote for the Democrat to protect people with pre-existing conditions from judges who legislate from the bench is a pretty strong argument (I almost typed “good slogan” but it is too long).

In particular, one of the most vulnerable Democratic Senators, Claire McCaskill (D-MO) is running against the state attorney general who is one of the crazy plaintiffs. She has already stressed this. Arguing that voters better not elect a Senator eager to confirm a justice who will delcare pre-existing condition protections unconstitutional strikes me as about the best campaign strategy I can remember.

So I think obstruction is the best way for Democrats to address both the vital issue of the supreme court and the important issue of the next Senate. It sure seems that the vast majority of Democratic Senators (who know and understand much more than I do) agree.

Update: Senator Schumer was 2 hours ahead of me (it’s his job).

Will Republicans & @realDonaldTrump nominate & vote for someone who will preserve protections for people w/ preexisting conditions, or will they support a justice who will put health insurance companies over patients, or put the federal government between a woman & her doctor?

— Chuck Schumer (@SenSchumer) June 27, 2018