Littwin: Justice Kennedy retires and now we wonder whether Roe v. Wade goes with him

You can mark this date on your calendar. A calamity is now upon us.

Justice Anthony Kennedy, the last conservative on a 5-4 Supreme Court who could reasonably be persuaded to sometimes vote with the court’s liberals, has retired. You can read in many places what this could mean — for gay rights, for civil rights, for affirmative action, for the imposition of the death penalty, in easing the way for Trump to do his Trump-like worst, but let’s get down to the main issue.

If Donald Trump makes a Trump-like pick — which he almost certainly will — that could mean the end of Roe v. Wade. CNN and New Yorker court analyst Jeffrey Toobin tweeted that in 18 months, 20 states will have banned abortion. It would take five votes, and another Trump pick could make it five, depending, the experts say, on whether Chief Justice John Roberts would cast the precedent-shattering fifth vote.

It’s shocking, I know. Democrats have been warning for years that if Republicans get to appoint enough Supreme Court justices, this is where we’d be. Many Republicans, meanwhile, have been worried for quite a different reason — the concern that many of their suburban women voters would desert the party if Roe were killed.

For Democrats, who are powerless to stop any Trump appointment by themselves, despair isn’t too strong a word. A solid 5-4 Trump court means a solid 5-4 far-right Trump court, even more hardcore than the court of today which just upheld Trump’s Muslim ban and slammed public unions. Senate Republicans have sold their souls to Trump in order to get these Supreme Court picks.

Which is why Harvard law professor Jack Goldsmith, who clerked for Kennedy, said Kennedy’s retirement is the most consequential event in American jurisprudence since at least Bush v. Gore in 2000 and probably since Roe v. Wade in 1973. 

Kennedy was the ultimate swing vote, a conservative Reagan appointee who, for 30 years, was persuadable on a court in which justice’s opinions are increasingly predictable long before a case arrives on the docket. He has been the justice lawyers knew they couldn’t win without.  If you’re into Supreme Court statistics, Kennedy was most often the deciding vote in 5-4 decisions in 20 of his 31 sessions on the court.

He wrote the opinion establishing same-sex marriage, striking down the death penalty for juveniles, upholding abortion rights. He also wrote the Citizens United opinion, voted against Obamacare, voted to reframe the 2nd Amendment’s right to bear arms and voted with the Colorado anti-gay-marriage baker.

Certainly, he was no liberal. He was also no anti-liberal ideologue. And now he’s gone, and it looks as Roberts, who is far to Kennedy’s right, would be the most moderate conservative.

And so, we’re being reminded again how we got to this place — how Senate Majority Leader Mitch McConnell didn’t allow Barack Obama pick Merrick Garland to get a vote. And how, after Trump’s victory, Neil Gorsuch was approved by the Senate only after McConnell put in the place the nuclear option, ending the filibuster for Supreme Court picks.

Gorsuch, who famously said there are no Republican judges and no Democratic judges, has been a Republican dream pick. So, sure blame McConnell’s hardball politics or blame a country that would select Trump as its president.

But as bad as things look, there might be a way out of this predicament. The only exit door would be through Roe v. Wade. Republicans hold what is for practical purposes a 50-49 Senate majority. John McCain is home in Arizona battling brain cancer. That means that one Republican could sink any Trump pick. 

Two Republicans, Maine’s Susan Collins and Alaska’s Lisa Murkowski, are pro-choice and would be loath to cast the vote that ends Roe. And yet. There are at least two red-state Democrats and maybe more — we’ll start with West Virginia’s Joe Manchin and Indiana’s Joe Donnelly — who might well vote for the Trump pick even if Roe is at stake.

Sometime Trump critics — Arizona’s Jeff Flake and Tennessee’s Bob Corker, who are both retiring after this session — could possibly vote along with the Democrats, pushing for a more moderate Kennedy-like successor for Kennedy. Flake was already promising to hold up Trump judicial picks if the president didn’t moderate on tariffs. Problem is, no one really expects Flake, when the moment comes, to stand up to Trump. It’s not what he does.

If there’s any hope to stop the process, it will depend in large part on the public reaction to whomever Trump picks. It will be a fight, but we don’t know what kind of fight. McConnell says he will push the nomination for a vote by the fall, meaning before the midterm elections. Democrats are already calling him a hypocrite, noting that he wouldn’t let Garland’s nomination come to vote because, McConnell claimed, of the upcoming presidential elections.

But that’s just inside baseball. Many Republican senators won’t just be looking at this vote as it affects the Supreme Court.They’ll be looking to the midterms and how this battle could affect the Democrats’ long-shot chance to regain the Senate majority. Certainly most Democrats will be running in opposition to Trump’s eventual pick. For Republicans, losing the Senate would be a disaster, particularly if Democrats, as many expect, win back the House.

In other words, yes, a calamity is upon us. But as devastating as Kennedy’s retirement will be for those who think both sides should get a reasonable hearing, it’s not altogether clear where this calamity will land.

Public domain photo from The White House via Flickr: Creative Commons. With President Donald Trump looking on, Anthony M. Kennedy, Associate Justice of the Supreme Court of the United States, swears-in Judge Neil M. Gorsuch to be the Supreme Court’s 113th Justice, Monday, April 10, 2017, in the Rose Garden of the White House in Washington, D.C.

8 COMMENTS

  1. Almost every single day it’s another bombshell from this “administration,” and now this. Is it the end of our democracy and decency as we know it? What are the timelines for the nomination and approval of a new justice? Will McConnell bend the Senate rules again to rush him/her in? Do the Dems hold any cards to delay until a possible Senate takeover?

    It’s days like this that I’m glad I’m old and don’t have any kids that will inherit this awful, awful mess of a country.

  2. To quote the great community organizer:

    “You don’t like a particular policy or a particular president? Then argue for your position. Go out there and win an election.”

    And one of the reasons we have President Donald Trump? This Supreme Court appointment:

    “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

    You appoint a racist to the US Supreme Court, you piss off voters and you get Trump.

  3. To quote the great community organizer:

    “You don’t like a particular policy or a particular president? Then argue for your position. Go out there and win an election.”

    And one of the reasons we have President Donald Trump? This Supreme Court appointment:

    “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

    You appoint a racist to the US Supreme Court, you piss off voters and you get Trump. That said, Trump is a social liberal. It’s unlikely that he’ll nominate a social conservative.

  4. Mike — good points I hadn’t considered.

    I don’t hold out a lot of hope that either Collins of Maine or Murkowski of Alaska will be able to influence Trump’s first choice. The pressure by leadership on them to vote Yes before the election could be irresistible. But if the first nominee’s vote fails, leading to a new, more moderate nominee and delaying the second vote until after the election, that could still help motivate the pro-freedom of choice advocates (R), (D) and (U) to vote, while still ultimately getting us a less radical justice.

    While the inside baseball aspects will drive a lot of punditry on the matter, (Hey, you really have to admire the cojones of Sen. Grassley for justifying rushing this vote before the election, citing the confirmation in 2010 of Kagan — you know, before McConnell invented the new rule to delay confirmations until after the next election), I believe Trumponomics could be the deciding factor this November.

    The market is already reacting badly to Trump’s looming trade war. Jobs are already being lost, and the litany of company announcements about raising prices, layoffs and moving more jobs overseas will upset many voters. With rising prices combined with falling sales and profits Wall Street is not going to be happy.

    But even more crippling to Trump is the strategically targeted retaliatory tariffs that are designed to hurt Trumpland the hardest. Even one of Trump’s own economic advisers said that the surest way to reduce trade deficits is through a recession. Economists and the CBO are predicting one hitting us by 2020, but Trump appears to be pulling that into 2019 or even sooner.

    You lose the farmers and Heartland small business owners, and you, sir, just lost control of Congress.

    Ultimately, it’s still the economy, stupid!

  5. Elections have consequences.

    “Hiding news that doesn’t fit an ideological or a partisan agenda is perhaps the worst form of media bias. And it’s one more reason the public holds the press is such low esteem.” – Investor’s Business Daily

    “(Mr. Trump) won’t be president. He was sliding in the polls before the video, and the video now means that he has no way to climb back. Which independent voter, which suburban woman, which Main Street Republican on the fence is going to vote for Trump now?” – Mike Littwin

    Magical thinking: The belief that one’s own thoughts, wishes, or desires can influence the external world. It is common in very young children. – Radiotherapy

    President Trump 306 Electoral votes
    Hillary Clinton 232

    #droptheMike

    }{

    Once again Mr. Littwin is warning readers that the sky is falling and this time he’s not kidding. “A calamity is now upon us.”

    And what, exactly is today’s “calamity”? Well, 81-year-old Justice Anthony Kennedy, who Mr. Littwin describes as “the last conservative on a 5-4 Supreme Court who could reasonably be persuaded to sometimes vote with the court’s liberals”, is retiring and Democrats are powerless to stop any of President Trump’s appointments by themselves. But Mr. Littwin believes Democrats may get Republican help because many of them are worried that “their suburban women voters would desert the party if Roe were killed.”

    That’s not what Aaron Blake is reporting in the Washington Post, “Democrats will fantasize that Sen. John McCain (R-Ariz.), Sen. Jeff Flake (R-Ariz.), Sen. Lisa Murkowski (R-Alaska) or Sen. Susan Collins (R-Maine) will take a stand with them. But that’s likely fanciful; it is much more likely that some of the 10 Democrats seeking reelection in red states will cross party lines in the name of being reelected.”

    It should be noted that Mr. Littwin’s “concerns” quite often turn out to be, well, less than concerning. For example, after the death of Supreme Court Justice Anton Scalia in 2016 Senate Majority Leader Mitch McConnell vowed to block any Barack Obama appointee no matter who it was. Mr. Littwin characterized Senator McConnell’s decision as, a “yuge problem for Republicans” and “untenable (and) also a likely Republican disaster.”

    He was sort of right, it was a disaster although not for Republicans.

    Of course Mr. Littwin didn’t stop there. He also said, “By ensuring that this appointment process becomes a political brawl, it also ensures that this appointment becomes a focal point in the 2016 presidential election as well as in U.S. Senate elections.”

    Well, believe it or not, that appointment was not a focal point in the 2016 presidential election and neither, by the way, was Roe v. Wade. What was a focal point in the 2016 presidential election was the economy and today that appears to be a winning issue for President Trump which could explain why Mr. Littwin didn’t mention it.

    According to a report in The Hill, “Perceptions of the U.S. economy have reached a record high among voters, according to a new poll. Two-thirds of voters polled, 66 percent, said in a Quinnipiac University poll released Wednesday they would characterize the economy as “excellent” or “good.” Quinnipiac noted that figure is the highest rating since it began asking the question in 2001.”

    And this is not the first time Mr. Littwin has claimed to know what motivates suburban women voters. In 2016 he told readers, “(Donald Trump) was sliding in the polls before the video, and the video now means that he has no way to climb back. Which independent voter, which suburban woman, which Main Street Republican on the fence is going to vote for Trump now?”

    Apparently, enough to win the election.

    And November’s elections don’t appear to offer any encouraging news for Mr. Littwin. Philip Bump reports in the Washington Post, “the Senate map happens to be exceptionally bad for the Democrats this year. Of the 49 seats they hold, more than half, 26, are up for reelection this year. Among seats held by Republicans, only nine are.”

    November 08, 2016

    “’Cause I don’t have no use
    For what you loosely call the truth” – Tina Turner

    Flags of Valor
    Folds of Honor
    Special Operations Warriors Foundation
    Memorial Day – November 11, 2018

  6. Liberals best hope is to align themselves with moderate Republicans who favor choice to some degree or another. Only 11% of the people are against abortion under all circumstances, and that tail is wagging the dog. Push for a Justice that will be a swing vote like Kennedy and not a far left favorite. We do not want to galvanize the radical right. They are using Republicans to use the government to impose their religious agenda on us all. It’s time to elect some Centrists who will force the extremes back toward the center.

  7. If you liberals think this is bad wait until Ginsburg dies and is replaced by yet another Trump nominee. Personally, all of this gives me a great deal of hope for the future, for if the nutjob Left had it’s way this country would quickly degenerate into the disarmed, state media dominated utopian socialist welfare state they fantasize about.

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