President Trump (two words I don’t think I’ll ever get used to having to put together) has just nominated federal appeals court judge Brett Kavanaugh to replace the retiring Anthony Kennedy as a justice of the U.S. Supreme Court.  According to the Constitution, it will take a simple majority vote in the Senate to confirm this nomination.  Will it happen?  Probably yes.  However, a lot of the country’s political and cultural conflicts over ideology will undoubtedly be laid bare in the process.

Theoretically, the federal court system, including the Supreme Court, was designed to be cordoned off from politics, and to be all about the austere adjudication of cases and interpretation of the nation’s laws.  Theoretically.  In reality, it’s just as political a branch of government as any other, at least in the way it’s perceived and treated, and that reality is more the case now than ever before, affected by our having two consecutive presidents whom a sizable part of the population (but very different sets of people from one to the other) consider not only bad but illegitimate.

It should be remembered that when Antonin Scalia died in the early spring of 2016, in Obama’s final year, the Republicans in the Senate adamantly refused even to have confirmation hearings for Obama’s nominee to the court, Merrick Garland.  Merrick Garland was exactly the kind of justice who, under normal circumstances, would get bipartisan support for confirmation; he is exactly the sort whom a Democratic president nominates when there’s a Republican majority in the Senate, whereas a Democratic president might well appoint a more overtly liberal justice if the Democrats controlled the chamber.  But the Republican leaders in the Senate announced on the day Scalia died–before Obama had even opened his mouth about a nominee–that they would not allow confirmation hearings to be held for anybody Obama might nominate, but rather, would leave it to the next president.  Thus was Trump able to put Neil Gorsuch on the Court.

As for Brett Kavanaugh, the vote in the Senate will be along nearly tight party lines.  Why just nearly?  There may be one or two Republicans who vote against him, like Susan Collins of Maine who does not want Roe v. Wade, the 1973 abortion rights decision, overturned, and there may be a few Democrats in the Senate who are up for re-election this year in states that voted for Trump in 2016, who feel pressured to go along with Trump on this one.  The way it looks to me, he’ll probably squeak through, but not with votes to spare.  There are 51 Republicans and 49 Democrats in the Senate now, and the 51 Republicans include John McCain, who is languishing with brain cancer and is rarely in Washington these days.  He would have to be physically present to vote.

If he’s confirmed, the Court will probably shift slightly to the right–slightly, because it’s a Republican he’s replacing, Anthony Kennedy, who, despite having voted with the liberals on some key cases like the gay marriage ruling, voted with the conservatives on plenty of controversial cases as well, like Citizens United (making it harder for Congress to limit the power of money in affecting elections) and Shelby County v. Holder (striking down a portion of the Voting Rights Act).  Two issues in particular where he’ll get the most scrutiny are abortion and affirmative action, issues on which Kennedy was not with the ultra-conservatives but Kavanaugh may be.

What Democrats are earnestly hoping is that liberal justice Ruth Bader Ginsburg can stay healthy until there’s a Democratic president, or at least until there’s a Democratic Senate.  And as things stand now, retaking the Senate in 2018 is not going to be easy at all for the Democrats.

Tonight (Tuesday, July 10) is opening night of my annual five-week summer American Government class at City Tech.  In that class, one of the developing stories we’ll be following closely is the start of confirmation hearings for Kavanaugh in the Senate Judiciary Committee.  For those who were in my classes in past semesters, please remember that you’re invited to join in the fun on the Discussion Board.

Article at Politico, July 10, 2018  (and if you’re logged in on a computer, you should see links to many other relevant articles in the news feed at the right side of the page)

The expectation in the Wisconsin gerrymandering case (please see my earlier blog post for a refresher) was that the four liberal justices would vote to strike down what the Wisconsin Republicans did as being unconstitutional, that at least four conservative justices would vote that partisan gerrymandering was not judiciable, and that Reagan appointee Anthony Kennedy would cast the deciding vote.  However, the Court surprised everybody: the justices voted unanimously to send the case back to the district court which originally heard it, with instructions to deal with a problem that all nine of them agreed was there.

The plaintiffs, it should be recalled, feel that computerized gerrymandering to crack-and-pack the Democratic voters with the drawing of district lines in order to maintain a Republican majority in the state legislature even when a slight majority of voters statewide are Democrats, violates equal protection of the law under the Fourteenth Amendment.  So far so good.  However, it should be remembered that a person who brings a case must have a standing to sue rather than merely an opinion.  To have a standing to sue, one must be able to show injury, must be able to show that one has been personally adversely affected by the law being challenged.

From the Court’s point of view, the lower court did not adequately establish that the plaintiffs had been adversely affected.  Only one affected plaintiff actually testified.  So, rather than deal with the merits of the case, the court is declining to decide it until it can be persuaded that the plaintiffs’ standing to sue has been demonstrated.

This is surprising behavior on the part of the four Democratic appointees.  While they are frequently accused of putting ideology over law, they certainly can’t be accused of that now, because ideologically, they can’t possibly want partisan gerrymandering to continue, since–at least at the moment–it’s the Republican Party, aka the Party of Trump, that this practice works for.  What the Court has done is allowed for the case to come back in the future but not made any ruling at all about either whether partisan gerrymandering is a matter for courts to be involved with (judiciable) or whether this particular scheme in Wisconsin violates the Fourteenth Amendment.

And if the same case does come back to the Court, will Anthony Kennedy still be the swing vote?  That’s a nope.  Another recent announcement in the news is that Kennedy is retiring.  It should be remembered that Kennedy was nominated by a Republican president (Reagan) and confirmed by a Senate with a Democratic majority, a Senate that had refused to confirm a more conservative nominee (Robert Bork).  Kennedy, who has sometimes voted with the liberals (including on the gay marriage case of 2015), will most likely be replaced this summer by a more conservative justice appointed by Trump and confirmed by a Republican-majority Senate.  Kennedy, of course, voted with the conservatives on some key controversial cases (including Citizens United and the voting rights pre-clearance case), but he was a swing vote in a number of other cases where Trump’s justice probably won’t be.  So, it’s safe to expect the Court to be more conservative now–and conservatives are less likely to interfere with partisan gerrymandering.

Washington Post article, June 19, 2018

Full text of the decision