Since Donald Trump’s nomination of Neil Gorsuch to the Supreme Court seat of the late Antoin Scalia, rumors have swirled that Anthony Kennedy may be contemplating retirement at the end of what would be his 29th term. He has made an indelible mark on the court with his right of center rulings on Obamacare and support of abortion rights in Whole Women’s Health vs. Texas. But, now with Gorsuch, a former clerk of Kennedy on the court, perhaps he senses the time is right to step down. Especially since Gorsuch has a history on the 10th Circuit Court of Appeals as being a bridge builder and not a divider.
Of course, this might be getting ahead of ourselves. Nothing is set in stone and Gorsuch has not even been confirmed. But, Trump smartly nominated a straight conservative shooter in Gorsuch and Democrats lack a message in opposition. Combined with the age of Kennedy and the remaining justices the question must be asked what the left would do if the ideological balance of the court was at stake?
Right now, Democrats and progressives hate the idea of Gorsuch’s nomination. But, it is countered by the fact the ideological make-up of the court is not at stake. Further, working against Democrats is the 2018 Senate map and the fact that Republicans, even while mired in the minority during Obama’s two terms, gave him two Supreme Court justices they could have blocked.
But, again, neither of those nominations would have changed the balance of the court. It was only when Scalia passed that Republicans dug in their heels and stalled until after the election. Their gamble paid off with Trump and Gorsuch. As laid out by Roll Call, Democrats have few good options to utilize.
In the case of the Supreme Court there are two worst case scenarios for the left beyond Gorsuch. It is almost guaranteed he will be nominated due to Democratic infighting and past precedent (though he probably won’t get more than 60ish votes on the final vote). The first (and lesser of the two) is that Kennedy does retire either next year or in 2019 and Trump has an opportunity to appoint his successor. The balance of the court would shift inevitably rightward and Kennedy’s more moderate viewpoints and positions on gay rights, housing and abortion would probably disappear with his successor. The second, and even worse scenario, is that it is either Ginsburg or Souter who retires or passes away and Trump can replace them. In this case, in many scenarios regarding government overreach you would have a 6-3 conservative majority and 5-4 on many social issues of the day.
Short of a disastrous midterm next year the GOP should have a few more sure votes in 2018 or 2019. This could embolden the party or Trump to nominate a firebreather (more on that in a second). The real question is what the left would do. After losing on Gorsuch would they go all in opposing a Kennedy or liberal justice’s successor? Probably.
With their Senate ranks whittled down to mostly pure progressives and the base demanding action you can bet Chuck Schumer would sense he has nothing to lose. If the Court is again deadlocked 4-4 for a year he can argue it functioned well that way in 2016 and part of 2017. Additionally, it would be a way to fire up the base for 2020.
The real wildcard in either of the above scenarios would be Trump. Would he appoint another straight conservative, a more moderate justice like Kennedy or a firebreather? here is precedent in history for each.
Take Richard Nixon for instance. Early in his term, Associate Justice Abe Fortas resigned his seat over a bribery scandal. Nixon, trying to appeal to his new base in the South, nominated Southerner Clement Haysworth. But Haysworth was not enough of a stalwart civil rights advocate for Democrats and they united to oppose him (Southern Democrats feared his views on judicial ethics).
Following this defeat Nixon went all in on segregationist G. Harrold Carswell. Carswell was not just a weak choice on this front, but also because he was viewed as a boob. As a result, his fiery rhetoric and lack of jurisprudence saw him be defeated on a 51-45 vote. Finally, on his third try, Nixon nominated Harry Blackmun. The same Harry Blackmun who authored the Roe vs. Wade decisive
Admittedly, Nixon was operating under a Democratic Senate and was trying to appease a new GOP constituency while simultaneously making the larger American electorate happy. Trump would be faced with different but similar constraints. Just as the left would be pushing all out opposition from their Senators the right would want Trump to appoint a “true conservative.” The religious right would want somebody who would overturn Roe vs. Wade, Constitutionalists would want somebody opposed to interpretism and Chevron Deference while the larger electorate might prefer a more moderate, centrist nominee.
None of this is guaranteed to happen of course. Rumors of Kennedy retiring are just that. A liberal justice stepping down or passing is just guesswork at this point. But it is likely the left would view a second Trump nominee that would alter the balance of the court for decades as an existential debate. The court could constrain “social growth” for decades and, “push women back into the 50’s.”
It is an open question whether blanket opposition would succeed. Much would depend on the nominee, the timing (2018, 2019 or 2020) and Trump’s ability to navigate the politics of the process. Democrats could wind up being so focused on opposing the nomination they miss out on messaging how out of step Trump’s many actions are with the American people. Regardless, it’s a good bet the left fights tooth and nail, or at least tries to, if the ideological balance of the court is ever at stake under Trump.