Will Trump
appoint another Supreme Court Justice in 2017? By Peter Hong, 5/26/17,
NetRightDaily
This could be the hottest summer in
Washington, D.C. I’m not talking about the weather. I’m talking about the
Supreme Court and the prospects for a confirmation fight like none other.
With the Supreme Court’s current
term coming to an end, rumors abound that at least one vacancy on America’s
highest court is likely.
Currently, there are three justices
who were born before the end of World War II: Justices Ruth Bader
Ginsburg (84 years 2 months), Anthony Kennedy (80 years 9 months), and Stephen
Breyer (78 years 9 months). Cumulatively, they have served over 75 years
on the Court, leaving in their wake a lot of bad decisions that have tilted our
society to the left — perhaps irreversibly.
The track records of Justices
Ginsburg and Breyer are not surprising; they are unapologetic judicial
liberals. Both appointed by President Clinton, the two justices agreed
88 percent of the time in their twenty years together on the Court.
On the other hand, Justice Kennedy
has been a head scratcher for Court watchers and a disappointment for
conservatives, since his appointment 30 years ago by President Ronald Reagan.
Positioning himself as the “man in the middle,” particularly since the retirement
of Sandra Day O’Connor, Kennedy has written or influenced key decisions
reaffirming legalized
abortion, overturning state laws
on same-sex
marriage, and upholding racial
affirmative action in college admissions.
Rumors of retirements arise each
summer as the Supreme Court’s term comes to a close, but this year’s chatter
seems particularly intense. Following the election of Donald Trump, the Supreme
Court itself had to shoot
down rumors that Justice Kennedy was set
to retire. With the next election for President over three years away,
conservatives are hopeful and liberals
are panicking that one or more of the three
Court octogenarians (in Breyer’s case, octogenarian-to-be) will hang up the
robe. If so, book the next flight to D.C. for Michael Buffet.
Article II of the U.S. Constitution
delegates to the President of the United States three fundamental duties:
serve as chief executive officer of the government; protect our nation as
commander-in-chief; and fill executive appointments and federal judicial
vacancies. It is this third duty — appointing judges to the federal bench
— where the president, particularly this President, has the best opportunity to
cast his shadow on history.
In his eight years, former President
Obama reset the federal judiciary with over 300 appointments to the federal
bench, most notably Supreme Court Justices Kagan and Sotomayor. When
Obama took office in 2009, only one of the 13 federal appellate courts (the
level below the Supreme Court) had a majority of Democratic appointees.
Today, that
number is up to nine, including the historically
conservative Fourth Circuit Court based in Virginia.
That court, where Democrat
appointees now hold a 10-5 majority, issued two major decisions last year
striking down North
Carolina’s voter identification law and
a Virginia school board policy that students use bathrooms
corresponding with their biological sex (vacated
for further argument by the Supreme Court). It just blocked the
President’s executive order on travel visa.
Federal judges matter. Based on his
selection of newly appointed Justice Neil Gorsuch and recent slate of lower
federal bench appointees, President Trump
appears to get it. And he has an unprecedented opportunity to restore
ideological balance to the federal courts. Upon assuming office,
President Trump inherited
over 100 vacancies to fill on the federal bench,
nearly double the number inherited by Obama in 2009.
As critical as all of these seats on
the federal bench are; when it comes to politics, a Supreme Court vacancy is
like the Super Bowl. And given the stakes and the current balance of the
Supreme Court, the fight over the next vacancy will be more like a war than a
game.
Fortunately, we have the weapon we
need to win this upcoming war, and we have former Senate Democrat Leader Harry
Reid (D-Nev.) to thank for it. In 2013, hungry to confirm Obama
appointees, Reid eliminated the use of a filibuster against executive branch and
non-Supreme Court judicial appointments, thereby allowing confirmations on
simple majority votes. In doing so, Reid opened the door for the “nuclear option,” precluding filibusters against Supreme Court
nominations.
Senate Majority Leader Mitch
McConnell (R-Ky.) was forced to use the nuclear option when Senate Democrats
filibustered the Gorsuch nomination earlier this year. McConnell wisely
pressed the red button and, surprise, surprise, the Senate still stands – and
Judge Gorsuch is now Justice Gorsuch. So, now that there is precedent for
deploying the nuclear option to overcome Senate Democrat intransigence – no
worries, right?
Not if Senator John McCain (R-Ariz.)
has his way. According to Politico, McCain made a
last-ditch effort to cajole a small band of
Democrats and Republicans into some kind of backroom deal. And while McCain’s
attempt to thwart McConnell fortunately failed, the Arizonan and other Senate
institutionalists continue to lurk in the corridors — waiting. They illustrate
why presidents and members of the House label their opposing party as the
“opposition,” but the Senate as the “enemy.”
McConnell is a cool, crafty, battle
tested Senate veteran, but he will face unprecedented pressure to cave — from
Democrats, who instinctively hate all things Trump, and Republicans who care
more about their Senate traditions than the future of American
jurisprudence. It may not be July, but it’s not too early to start
turning up the heat in Washington, D.C.
Peter
Hong is a contributing reporter at Americans for Limited Government.
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