Dare I Offer a Reasonable Take on Kennedy's Retirement?

Things will not change much regardless of who the nominee is.

Justice Anthony Kennedy has, in large part, served as Chief Oligarch of the United States of America for over a decade. A generation of lawyers have gone through law school learning how to make arguments just to cater to Justice Kennedy's various tics. At his retirement, the progressive left engaged in a temper tantrum against him and a rage against what they see as a massive set back in American jurisprudence.

First, stop letting Washington do everything and this will be less of a problem.

Second, the Supreme Court should never have allowed itself into the position of substituting the moral decisions of 300 million people with the morals of Harvard and Yale.

Third, nothing major is going to change. This year, for example, Kennedy was almost always a consistently reliable conservative vote. He voted to keep the President's travel ban, against Colorado punishing the Christian baker, against public sector unions, against California punishing pro-life centers, etc. He was reliably conservative and his replacement will be too.

Fourth, any nominee will have to get through not Democrats, but Lisa Murkowski and Susan Collins, both of whom are pro-abortion senators. They will provide cover for swing state Democrats to oppose any conservative jurist for the job. Additionally, Bob Corker and Jeff Flake are both retiring. Neither need show any loyalty to conservatives. This will be a steeper hill for conservatives to climb than they think because of those senators.

This is why President Trump should play it safe. He should consider someone like Senator Mike Lee, who his colleagues would be glad to push off to another branch of government. Or he should consider someone like Amy Barrett who these and several Democrats have already supported in the past year.

Lastly, President Trump has a list of people whose names he has already submitted to the public as possible nominees. The problem with that list is leftwing interest groups have spent the last two years collecting opposition research on each of them. That will make this nomination process far nastier than past nomination fights. Couple that with the Murkowski and Collins vetos and conservatives should be more realistic about the type of successor to Justice Kennedy we will get.

Comments
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Swan
Swan

I agree with Erick. It won't be easy - even with a Republican majority - for the President to get just any candidate off his list approved - because there are some Republican Senators who won't support some of his candidates. Senator Mike Lee is the best option. Not only is he a strict Constitutional originalist, but Senators who would be resistant to supporting others who share his ideology WOULD actually support him - because they would love to dispense with his consistently conservative vote in the Senate.

BiggDoggie
BiggDoggie

So, we're looking for an progressive originalist, female or trying to be , young but not too old, preferably LBGT or even Q and from an Ivy League or West Coast school. Someone who's got an R, butmore of the NE-type. Powerfully spoken, but not saying anything worth hearing.

Do I have it?

Jules*
Jules*

@aprilmoon says: " I just don't want an ideologue." Why not? Ideology is a lot more consistent and defensible than personality or tribal identity, which are the two things driving most "political" discourse today.

Ideology is, at its best, a coherent political philosophy, a blueprint for how best to govern the nation. When discourse revolves around ideology, it is possible to have real conversations about real ideas. You may believe that the ideology of socialism is fatally flawed, for example, but your arguments against it will be based on comparing the successes and failures of socialist nations against the United States when it was governed according to its Constitution. There are objective metrics.

Without ideology, we are stuck with Identity Politics, and an endless litany of whining about who did what when and why it was so offensive and who has the worst hair or the ugliest ankles. Identity Politics need emotion and emotion feeds on Identity Politics, whereas ideology may have an emotional component but at least can be defined and fit into actual discourse.

MarkBerwind
MarkBerwind
etbass
etbass said: I disagree with Erick here.  Now is a great time to push a strong originalist/textualist with no red flags and no squishes.  The left is going to set their hair on fire no matter what, even if Trumo nominated Merrick Garland.  That's a given. The question is where do the votes come from.  I don't see how Manchin, Jones, Heitkamp, Donnelly, etc vote against Trump's nominee in states he won by 30%+.  It's political suicide.  If most of them weren't up for reelection, it might be different.  These voters aren't getting into the details of the nominee.  You can't claim to be a moderate and then oppose Trump's nominee unless the nominee has some major skeletons.  Being  opposed Roe won't do it.  These states also oppose Roe by large margins.  If they vote for them, then they risk their funding drying up.  My bet is that they'll take chances and vote to confirm Trump's nominee, sticking with the voters during an election year.  They break with voters in election years and donors the other 5. I don't think we have to have Collins, Murkowski and McCain.  Flake and Corker hate Trump, but they will do what McConnell says.  That means we only need 2 Democrats.  That should be doable. I do agree that Lee is the best choice.  Next would be a judge they've just voted to confirm.  We can't squander this by sitting another unreliable, inconsistent, spineless, illogical waffler like Roberts. I also believe we are still 2 short on overturning Roe, maybe 1 after this replacement.  I don't see Roberts doing it.  I don't think he agrees with it, but I don't think he will be willing to buck stare decisis.  He'll be afraid of the court losing power and setting off mob violence on the left.  I'm hope I'm wrong about him, but this is exactly the thing he did on Obamacare.  He disagreed with his own ruling, but decided to limit it and prevent the court from losing stature.  By trying to avoid politics, he became directly involved in politicizing it's decisions.

I think Roberts may turn out to be the next swing vote Justice, and the Chief can be a natural in that position, unfortunately. Either that, or Obamacare was a fluke and someone had dirt on him, which swayed his opinion.

MarkBerwind
MarkBerwind

I only see the need for replacing as few as possible, and building up as many as possible, each election cycle. Utah is reliably red, but Romney will make it turn magenta. Romney is a maybe as far as reliability goes. One could almost say he is a conservative as Murkowsky, or Collins. It's always going to be a numbers game, and another thing to consider is that Mike Lee will have Hell to pay to pass confirmation hearings, rather than a conservative track record without having a track record on life issues, which most of the other judges likely exhibit. I like Mike Lee, too. It's a toss up with either Lee and Cruz as to whether their seniority in the senate is worth more than their seniority anywhere else would benefit Republicans. Regardless of what anyone else believes, the senate works off a seniority like system, with their good ole boy system, and the longer a Lee or Cruz remains, the longer the senate goes real red, instead of remaining magenta. The House can pass bills all day long, but the senate has become a roadblock, and is getting worse, if not by Republican weaklings, alone. If Lee gets the nomination, that's fine. He's a good man.