One of the big news items of the week is the announcement that Justice Anthony Kennedy is stepping down; he's been the swing vote on just about every 5-4 case in the last decade, very rarely being in the minority on any contentious case. While Kennedy was a Republican nominee, he's been fairly neutral over the years, setting up a 4-1-4 split for the last decade, with four reliably conservative justices (Thomas, Alito, Roberts and Gorsuch) and four reliably liberal justices (Ginsburg, Breyer, Kagan, Sotomayor), with Kennedy as the fulcrum.
The seat now held by Gorsuch threatened to tip the scales when Antonin Scalia died in 2016; Republicans had to stall the naming of a replacement until after that year's presidential election to avoid a left-oriented Obama nominee Merrick Garland making things a 3-1-5 liberal split. Democrats will be in the same spot now, hoping to stall things until they can (in their hopes) beat a few Republican senators come November and gain a Trump-proof majority in the Senate.
However, judicial nominees can't be filibustered anymore; two years ago, Republicans could stop a cloture (shut up and vote) resolution with 41 votes. Now, a simple majority can bust a filibuster, so stall tactics aren't as fruitful for Senate Democrats.
One Republican senator, Mike Lee, made an interesting observation that might calm some liberal fears.
“They have to take into account the doctrine of stare decisis, which is a doctrine that generally puts the Supreme Court on a path of following precedent,” he continued. “So, they can't know for sure how any one of those issues is going to turn out and whether any one of those cases might be overturned.”
The retirement of Kennedy, the swing justice who cast the deciding vote in favor of allowing same-sex marriage and in multiple abortion rights cases, has prompted significant concern among liberals that those precedents and others might be undone with a more conservative, Trump-appointed justice on the bench.
On "Obamacare", Chief Justice Roberts has been willing to bolt from the party line and grant that they had a right to tax the uninsured and to fudge on calling the federal government a "state" in order to have national health care exchanges in states that didn't set their own ones up. It's possible that he, or one of the other conservative justices might go with precedent. Abortion's been legal since a week before my wife was born and someone like Roberts might be loathe to scrap 45 years of precedent.
However, Justice Thomas has the famous (at least in the conservative Blogosphere) quote "Stare decisis is fo' suckas"; a lot of dead blog links make a definitive take on that hard to track down. The idea is that if a decision is wrong, bowing to precedent isn't wise; current judges, especially those on the Supreme Court, have a duty to correct bogus decisions of the past. From that vantage point, Roe v Wade might be destined to join Plessy v Ferguson (OK-ing Jim Crow) in that historical dust bin.
The nomination fight will be nasty, as the 51-seat majority held by the Republicans can only stand 1 defection or abstention if Democrats vote no en masse. A combo of a cancer-weakened McCain having to skip a vote and a balky Collins not willing to risk Roe could sideline a nominee. Taking back the Senate no sure thing for the Democrats, but they'll likely throw everything including the kitchen sink (Incoming!) to derail a conservative nominee in the meantime.
The current president isn't great at charm offensives, as he reverts to being merely offensive far too often. However, Republicans will be trying to win over both the more RINOey senators (Collins, Murkowski) and some of the winable Democratic votes (Tesler, Manchin, Heitkamp, Donnelly) over to the nominee.
Interesting times.
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