Wednesday, June 27, 2018

Retirement of Judge Kennedy: Democrats should go ahead and make a big stink.

The retirement of Justice Anthony Kennedy and filling the vacancy will shape critical judicial decisions for decades. Senate Democrats have a choice: whine  their votes are not a big  enough stick to influence the outcome or to make a big stink. Making a big stink has some advantages for Democrats in November 2018 even if they fail to slow down replacement confirmation.  

At stake are Roe v Wade, affirmative action, campaign finance,  same sex marriage, and voter suppression, but whether the President can be above the law is the most critical issue the new court could decide. If Kennedy had an ideological center, he was a mild libertarian on social issues. Who replaces him is likely to be a hard line  right winger  on social issues, given GOP and Trump campaign promises. The list from which the Trump administration is drawing for their nominees has already been vetted for ideological and Trump support acceptability.. Every single one on that list is pro life ,very conservative, a Trump loyalist,  and young enough to tilt the court to the right for thirty years  since they can occupy that seat for their lifetime.

To get Neil Gorsuch through a closely divided Senate, filibuster was ended by the Republican majority during his vacancy filling  and a simply majority is all that is now needed  for the Senate to confirm..For the GOP this  opportunity to push forward to fill the Kennedy vacancy is  the icing on the Gorsuch cake. It explains why the Evangelicals have supported  the most immoral, dishonest , and inept president in our history.for their opportunity to guarantee  a socially conservative Supreme Court for decades to come. Expect the GOP Senate to push through the confirmation process as quickly as possible to act while  they have the upper hand with the votes.

Will fighting a losing fight be good for the Democrats?   On the balance, yes. While  their votes are not a big stick to affect the  GOP confirmation strategy, they can still make a big stink. The stink will certainly help Democrats in  state legislature races since strike down of Rove v Wade or all of the other liberal issues including gay rights, will put more  focus on  state legislatures and state houses.  If it increases Democrat's turnout, already polling as more enthusiastic than the GOP at this stage, it could help. However, it could also raise the turnout of social conservatives and the GOP and erase the Democratic enthusiasm turnout advantage. If Roe v Wade is the single focus issue,  Democrats should be cautious and tailor the fight to local circumstances.  On the other hand, support of Roe v Wade is so popular, that position could backfire on the GOP and intensify Democratic turnout  by women even more up and down the November ballot. 70% of Americans oppose overturning Roe v Wade and that is a fact  the Democrats can use to their big advantage.

 The   potential issue most  critical  to our democracy is what happens with Court rulings on  the Mueller investigation and whether Trump can be above the law. Donald Trump contends he can pardon himself or others in advance or refuse to appear and testify when subpoenaed.and  that he cannot be accused of collusion, either.  Those are fundamental  Constitutional issues. . By Senate approval  of a replacement to Kennedy with someone whose loyalty and ideology has already been vetted, means that the president in effect has chosen a juror loyal to him. That is the Democrat's best argument for delaying confirmation until after the November 2018 election  and the outrage of the majority will have a chance to be expressed up and down the ballot.Sen. Richard Blumenthal (D-CT) will be asking the nominee to recuse himself if these issues of presidential power come before the Court.

   How Democrats could move the court to the center to offset court stacking by Trump loyalists and extreme ideologues is to do what has been done in the past: increase the seats on the Supreme Court (FDR failed in his attempt for lack of support from his own party,  but others in our history have succeeded. )   In order to do this, Democrats must capture the White House and both houses of Congress in 2020. That backlash could  possibly succeed  if the GOP pushes through extremist ideologues or the court becomes their  6-3, 7-2  Court.  The GOP  devotees should be careful what they wish. A court so out of the mainstream of popular support of issues will be open to that threat. 
Top among those issues: gay rights and choice;both very popular with the majority of voters.  What wil become top of the issue list will be if the new court rules Donald Trump is above the law in issues of self pardon, immunity from criminal prosecution, and complying with the emoluments clause of the Constitution. At the very least, the revolt against such an extremist court would spread to elected officials running for office up  and down the ballot in 2018 and 2020.

I cannot conceal my bitterness at the Democrats who sat on their hands at home in November 2016 or voted for a third party because they just "didn't like either candidate". Fools. At best, this whole exercise should be a painful lesson for them. Elections have consequences.

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