Supreme Politics

Looking ahead to the next few weeks in Washington, what is on the horizon? Much as those of us who live outside USA are worried by Trump’s foreign policy – trash your allies and fawn over your enemies – those Americans who see no issue with isolationism will not be concerned. However, I hope the ‘misspeak’ with ‘would’ for ‘wouldn’t’ could come back to haunt the President. Nobody, surely, is fooled by him. But will the American public care?

Might Marjory Stoneman Douglas High School return to the news cycle? 157 days ago in Parkland, Florida, Nikolas Cruz killed seventeen students and teachers and wounded seventeen others. The media suggested it was a turning point in the fight against guns. But what have the politicians done? Nothing. All the promises are in dust and the media has forgotten another American mass shooting. Yet again, the NRA has triumphed.

The Mueller Inquiry drags on. More indictments were made last week but the inquiry has taken a very long time and still there is no link into the Oval Office. The President tweets and fumes about the process but if he did collude with the Russians to damage Clinton’s election campaign there will be a price to pay. But not yet.

The story that might dominate the summer months is the nomination for the Supreme Court. Two weeks ago, I wrote about the retirement of Justice Kennedy. The President has nominated The Honourable Brett Kavanaugh to replace Kennedy on the Supreme Court bench. I suspect Justice Kennedy will be pleased. Kavanaugh is a judge in Kennedy’s image. Perhaps the President privately assured Kennedy of his likely successor to encourage the retirement. As a top aide to President George W. Bush, the nomination will help bring support of the politically formidable Bush family. The nomination will also delight partisan legislators who are looking to restrict abortion, women’s rights and LGBT, support gun ownership, ensure a lack of restriction on campaign finance and pass restrictive immigration laws.

Kavanaugh has a record, a paper trail of decisions on and off the bench, to establish his right wing, conservative record. He played a part in the Clinton impeachment as part of prosecutor Ken Starr’s team. He helped write the indictment, the Bills of Impeachment. He has made conservative judicial decisions on affirmative action and abortion cases. He was regarded by many as a political operative and rubber stamp for the George W. Bush administration. That is one of the reasons why it took him three years to be confirmed for the federal bench.

In my earlier blog, I explained the nomination process for a SCOTUS hopeful. I expect the Senate Republicans to press for early confirmation hearings, in contrast to what they did when Antonin Scalia died. The Republicans delayed an Obama nomination, stating the non-existent rule that vacancies should not be filled in the last year of an administration. Sadly, Obama did not fight the issue.

The Republicans will have an eye on the 6^th November, the date when America goes to the polls in the mid-term elections. Currently, Senate Republicans enjoy a narrow 51 – 49 majority. However, Republican Senator John McCain is unwell and is very unlikely to be well enough to attend the Senate and vote. It’s simple math. If all Senators vote on party lines, ultimately the nomination will go through.

But nothing in American politics is simple, nor is there ever a given in Washington. There are seven senators, four of them Democrats and three Republicans, who will be under enormous pressure when it comes to the Senate vote on the confirmation. The potential Republican nay voters are Lisa Murkowski (Alaska), Susan Collins (Maine) and Rand Paul (Kentucky). Both Murkowski and Collins are strong supporters of abortion rights enshrined in Roe v Wade. Indeed, Collins is on record that she will oppose a nominee hostile to Roe. Kavanaugh, a Roman Catholic, is thought likely to support a reversal of Roe.

Paul is in the potential nay camp for a different reason. He strongly disagrees with Kavanaugh on the meaning of the Constitution’s Fourth Amendment, which prohibits unreasonable searches and seizures and requires any search warrant to be judicially sanctioned and supported by probable cause. Paul has shown little reluctance to defy Senate GOP leaders and the White House to make a point on civil liberties and other privacy issues. If these three Republican Senators vote “no”, the numbers would be Republicans 47 (if McCain makes no appearance), Democrats 49.

Some political observers suggest that Republican senators Jeff Fiske of Arizona and Ben Sasse of Nebraska may vote against Kavanaugh. Both have often denounced the President but do not use strong leverage. Fiske is retiring from Congress which my make him a tough target for a yes vote.

So to get his nomination through, Trump might need to enlist three or four Democrats. Heidi Heitkamp (North Dakota) is coming up for re-election in a Republican state. Oddly, she seems to be getting support from the White House. Joe Donnelly (Indiana) is also up for re-election in November in a red (Republican) state. He has voted against Trump on big issues like the tax bill but he may not be able to separate himself from Trump policies in this Mid-west state. Joe Machin (West Virginia) has an election to fight in November in a state won by Trump in double digits. He voted to confirm Gorsuch. Doug Jones (Alabama) won a Special Election last year and might have to cross party lines because of pressure in his home state.   

I have no crystal ball. I don’t know the pace of the confirmation hearings and whether the Senate will vote before the mid-terms. I don’t know which, if any, senators will cross party lines, so I don’t know the outcome. What I do know is the Supreme Court is nothing if not political in its processes and landing a judge on the Supreme Court bench is often a rough and nasty course. I doubt Kavanaugh’s confirmation will be any different.

Why is this so important? Politicians come and go but Supreme Court justices are on the bench for life. They have not only the opportunity but also the right to change American law elating to business, culture, economics, minorities, and all processes of American life for years, if not decades. A future liberal executive and Congress will have a stumbling block in their way with a 6-3 conservative court. This would not be the first time. Take a look at the early years of the FDR administration for proof. The court tore down the first New Deal. Trump may be gone soon but his influence on American life would be felt for generations.