Commentary: How Do You Spell Game Change in 2018? S U P R E M E C O U R T

Supreme Court Justices

by Jeffery Rendall


Another Kennedy leaving Washington has Republicans giddy, though this particular one has no relation to the famous (infamous?) clan from Massachusetts Bay.

It’s old news by now but Associate Justice Anthony Kennedy announced he’s stepping down from the Supreme Court on Wednesday, sending the nation’s capital into a tizzy and wiping virtually everything else – including the phony illegal immigrant family separation “crisis” – off the news wires. There’s nothing quite like an impending Court vacancy to wrest the political chatterers’ attention from their all-complain-all-the-time stupors and get them focused on something really imperative.

Yes, Kennedy’s deciding to hang up the long black robe after three full decades is a big deal, not only for the future direction of the Supreme Court but also for Americans’ liberties in general. Needless to say, this year’s crucial midterm campaigns just received a shot of new energy and enthusiasm, especially for Republicans in red states challenging increasingly vulnerable Democrat senate incumbents.

It’s often said fortunes can turn on a dime and it may actually come true for Republicans — and conversely, Democrats — this year. While conservatives received Kennedy’s news with happiness and anticipation, the anti-Trump resistance was angry, defiant and as we’ve come to expect in many ways, vile. Amber Athey reported at The Daily Caller, “Liberal activists and journalists are melting down over Justice Anthony Kennedy announcing his retirement from the Supreme Court on Wednesday.

“Kennedy, who has served as the court’s swing vote for decades, has now opened the door for President Donald Trump to finally give conservatives their long-desired court majority. Progressives immediately reacted to Kennedy’s retirement with fear, anger, and sadness.”

Here’s a sampling of the slightly-more-than-unhinged leftists’ tweets (it’s well worth it to click on the link to read all of the comments in Athey’s article – what a collective mental collapse):

“For starters, abortion rights are more imperiled now than at any time since Roe v. Wade. And there is no reason to think there won’t be a rollback of gay rights, either, with Kennedy gone.” (Andrew Cohen)

“We have no choice but to organize, strategize, vote and act. Ambivalent attitudes are not a option! All civil and human rights are at stake. What side are you on?” (Reverend Al Sharpton)

“As a member of the LGBTQ community, Justice Kennedy being replaced threatens my rights. It also threatens the rights of minorities, women and Muslims. Trump must not be allowed to replace him before November. Let the people speak first.” (Thor Benson)

Far be it from Democrats to turn this vacancy into the latest burning political issue to “save” their “rights” from extinction at the hands (and pen) of another originalist Supreme Court Justice who interprets the law rather than makes it. All of these so-called “rights” — including abortion — wouldn’t simply disappear if a case were overturned anyway; the question would be remanded to the individual states to take care of. Instead of freaking out these folks need to organize at the state and local level and stop having convulsions over potential shifts in federal law.

Talk about the need for a civics lesson – where did they go to school, New York City?

And what, the left so quickly ditched all those poor weeping Hispanic children so as to rip into Justice Kennedy for deciding to retire at age 82? Just imagine what the Trump haters’ reactions would be if/when one of the aging liberals on the Court announces her/his intention to enjoy the remaining years of their lives away from hyperventilating interest groups that somehow assume their entire existence hinges on one or two human beings in a marble Supreme Court building.

Kennedy’s retirement was anticipated, after all. There could be others soon that would be more jolting. Justice Ruth Bader Ginsburg is no spring chicken at 85 (and battling cancer) and Justice Steven Breyer is well-past ripe at 79 (he turns 80 on August 15). By comparison the oldest member of the conservative bloc is Justice Clarence Thomas who looks spry at (just turned last Saturday) 70. Samuel Alito is 68, leading most observers to conclude the conservatives probably have at least another decade to steer the Court back in an originalist direction.

For the record Chief Justice John Roberts is 63, Justice Elena Kagan is 58, Justice Sonia Sotomayor is (just turned on Monday) 64 and Justice Neil Gorsuch will turn 51 on August 29. For his part President Trump said on Wednesday night the next Supreme Court justice might serve “40 to 45 years,” which could indicate he’s looking to appoint…someone on the younger end of the scale.

Why shouldn’t he? With the left and Democrats so reliant on the federal courts to enact whatever they couldn’t otherwise accomplish through the ballot box and the legitimate legislative process it only makes sense to cement a presidential legacy by elevating a youngster (okay, maybe middle-aged). Or, if I were Trump, I’d comb the membership rolls of Young Americans for Freedom (YAF) for recent law school grads and appoint a youthful leader of the organization to the high Court. You say you want 40 or 45 years of tenure? Forget it! How about 60 years?

I’m only semi-joking about the YAF part. The left has made the Supreme Court its proverbial hill-to-die-on for virtually every deviant social cause in existence so Democrats richly deserve a little in-your-face posturing. Trump is just the one to give it to them too. Anyone who fears Trump might shy away from picking another Neil Gorsuch-type because Kennedy was seen as a centrist “swing” vote doesn’t understand the temperament of our outsider president.

Trump recognizes how many consider his appointment of Gorsuch as his signature achievement despite everything else he’s done thus far in these seventeen-plus months. If there’s an area where Trump – or any president — can truly leave a legacy, it’s on the Court. Odds are he’ll get the chance to do it, too.

Alex Lockie reported at Business Insider, “In October, the news website Axios cited an anonymous source detailing private predictions by Trump that Justices Ruth Bader Ginsburg and Sonia Sotomayor would retire during his term.

“’What does she weigh? 60 pounds?’ Trump asked of the now-85-year-old Ginsburg, a source told Axios. The same report indicated Trump said Sotomayor, over 20 years younger than Ginsburg, was also in trouble because of ‘her health.’ ‘No good. Diabetes,’ Trump reportedly said.

“Sotomayor had a health scare in January with paramedics treating her for low blood sugar, but she quickly returned to work. Sotomayor says she’s vigilant about her Type 1 diabetes, which she’s had since childhood.”

It’s understandable how Trump would speculate on the possibility of replacing Ginsburg but here’s thinking Sotomayor, as the first Hispanic to serve on the Court, will persist in her current capacity until she breathes her last – or another Obama-type president is elected to replace her. There’s really no effective way to remove a Supreme Court justice (there’s impeachment, but good luck getting that through Congress), so a “lifetime” term means just that for most jurists.

Sotomayor’s only been on the Court for nine years too, quite a short period of time these days. There’s a lot more damage to be done on her part, but an argument could be made she’d consider leaving if Kennedy is replaced by a solid originalist in the Scalia-mold and Ginsburg’s inevitable departure is followed by a conservative as well. A genuine 6-3 conservative majority would make the liberals’ lives a lot more meaningless. We’ll see.

Trump reiterated on Wednesday he would once again use his judicial prospect “list” to select the next Supreme Court justice, which terrified liberals and heartened conservatives. For those who forgot, Trump’s “list” was compiled with help from the Federalist Society and is made up of proven judges with discernible philosophies. Some worry Trump’s loose cannon personality will show its face at some point but there’s no possible way he’d consider an outlier in this instance.

Trump’s considerable ego alone wouldn’t permit him to risk his presidential reputation by appointing another wishy-washy judge like David Souter, Sandra Day O’Connor – or Anthony Kennedy – to the Court. Everyone knows Kennedy earned his reputation as the “swing” vote by waffling on vitally important social issues that have literally transformed society.

For example, Kennedy inexplicably reaffirmed abortion rights in 1992 and wrote the opinion that paved the way for nationwide same-sex marriage in 2015. Do you think Ronald Reagan would approve of Kennedy? Reagan led the vanguard on the reemphasis of traditional conservative social and cultural values at a time when the hippy generation was still peddling “free love” and shooting acid in New York City discos. Because of his tendency to go off the reservation some convincingly argue Kennedy was Reagan’s greatest mistake. Trump won’t allow the same thing to happen to him – he’ll vet the “list” himself if need be. This matter is thatimportant.

With the right choice Trump’s Court legacy could be much more conservative than even the Gipper’s. W. James Antle III wrote at the Washington Examiner, “The constitutional questions matter a great deal. So, to most politicians, do the practical results on everything from abortion to voting rights. A Supreme Court vacancy now must be treated with even greater urgency than a vacant Senate seat, especially when it swings control one way or the other…

“Once one party views things in these terms, both parties must do so or else practice unilateral judicial disarmament. Thus for every Merrick Garland, there is a Miguel Estrada.

“That’s why Trump has an opportunity that eluded Reagan and both Bushes, to say nothing of every Republican president since World War II: to deliver the Supreme Court to conservatives for a generation.”

As this week’s Supreme Court decisions (on Trump’s travel ban, compelled public union membership and First Amendment rights of crisis pregnancy centers in California — all of which Kennedy sided with the conservative bloc) demonstrate, much of Trump’s agenda could end up at the bar of the Supreme Court. It’s proving very difficult to get anything passed through Congress – other than judges and administration nominees – so if Trump is to make a lasting difference it could come through his Court appointments and constitutional executive orders.

Needless to say litigation regarding Trump’s immigration enforcement mandates, environmental policies and even his border wall could reach the Supreme Court level. Congressional Democrats (and the feckless GOP establishment leaders) will stonewall his agenda at every turn so it might be up to the courts to give the okay for his more controversial policies. Trump won’t take a gamble on a justice running to the opposition to become another Anthony Kennedy.

Aside from the long-term considerations Trump also relishes a good fight. For this reason, he won’t shy away from picking someone the Democrats will paint as the anti-Christ (which pretty much runs the gamut of everyone on his list). Democrats are already gearing up for the effort, which probably means they’ll go overboard in their public relations campaign to smear the person’s good name. Will it create an opening for Republicans in this year’s elections?

David M. Drucker wrote in the Washington Examiner, “Republicans say a months-long battle over Kennedy’s replacement, and expected confirmation vote just before the election, is an insurance policy of ‘immeasurable’ value. It gives the Republicans a tangible issue to motivate low-propensity voters and put the squeeze on vulnerable red state Senate Democrats who must choose: vote with their state or anger the liberal base…

“Republicans are optimistic the Supreme Court could alter a political atmosphere dominated by Trump’s indiscretions and turn the midterm elections into a referendum on partisan control of Congress that the GOP can win. The issue, they say, could drive Republicans to the polls in battleground House districts to vote for Republicans, even in states without competitive Senate contests.”

It’s true; if the GOP plays its cards right this year could turn into 2016 all over again. Surveys showed the Supreme Court was a key motivating factor for wavering voters two years ago; it could very well be again in November. Trump should send up the most conservative nominee possible and watch the Democrats pontificate, sweat and squirm while they demonize him or her into oblivion with predictions of how the world would end upon confirmation.

President Trump likely didn’t beg Justice Kennedy to retire but no one would’ve blamed him if he had. Kennedy’s departure not only represents a golden opportunity to remake the Court for a generation, it also gives Republicans a winning cause to run on this fall. It’s game on for 2018.










Reprinted with permission from

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One Thought to “Commentary: How Do You Spell Game Change in 2018? S U P R E M E C O U R T”

  1. Randall

    Now if Darth Bader Ginsburg will leave.