BTRTN: How the GOP Vision of Conservative Supreme Court Dominance Could Fall Apart

Tom on the ways the GOP bubble could burst.

The news of Anthony Kennedy’s imminent retirement from the Supreme Court was not exactly a surprise, but it was still a shock.  The implications were immediately processed by all – the long-held GOP dream of an unshakable majority of five conservative judges was going to become a reality, in short order.  And with it comes the potential for conservative opinions that re-shape and undo progressive advances of the last 60 years, already well underway under the Roberts Court, to accelerate unchecked, perhaps for decades.

There is little the Democrats can do to prevent this from happening. But that does not mean this path does not face obstacles that could derail it – perhaps quickly. Let’s take a look at the many ways the GOP dream could still unravel.

The Fumble

The first hurdle is to nominate a candidate without a blemish, one who can actually make it through the confirmation process.  Finding nick-free nominees is surprisingly difficult, and modern GOP presidents are particularly bad at it.  Richard Nixon had two nominations fall apart, Clement Haynsworth and G. Harrold Carswell, both rejected by the Senate in turn upon discovery of their racist histories.  Ronald Reagan fared poorly as well, first with his Robert Bork nomination failing when a Democratic-controlled Senate disapproved of Bork’s hard right views.  Reagan then put forward Douglas Ginsburg, who had to withdraw when he admitted that he had smoked marijuana (inhaling and all).  Reagan finally had to nominate a relative moderate candidate who flew through the Senate confirmation process -- a man by the name of Anthony Kennedy. 

The two George Bush's also ran afoul of the process.  Bush 41 nominee Clarence Thomas barely survived a bruising confirmation process, fending off sexual harassment charges that would have quickly sidelined him today.  And Bush 43 struck out when he nominated his own White House Counsel (and one time personal lawyer) Harriet Miers, who, it turned out, did not know a heck of a lot about the law, and had to withdraw.

Vetting is better these days, so they say, pointing to Trump’s smooth win with Robert Gorsuch.  Perhaps, but it does not take much to take down a nomination, and you can bet the Dems and the media will crawl all over Trump’s nominee as never before.  If they find something that forces a withdrawal, Trump may not have time to get another nominee through before the midterms.  And then, the Dem fantasy would be to take over the Senate in November (not likely but possible) and force Trump to put forward a far more moderate nominee – if they accept any Trump nominee at all in the balance of his first term.

Vengeance, Part I

You remember Senator Jeff Flake, the lame duck GOP Senator from Arizona who perhaps heads the list of Trump’s public GOP adversaries?  Flake, as it happens, is a member of the Judiciary Committee, which must recommend out the Supreme Court nominee to the full Senate.  There are 21 Senators on the committee, 11 Republicans and 10 Democrats, so Flake has the power to hold up any nomination, for any reason, including no reason at all.  Flake, of course, hates Trump, and vice versa.

Now this could destroy any political aspirations Flake may harbor, and some think he may indeed mount an intra-party challenge to Trump in 2020.  But who knows, perhaps Flake would argue that denying Trump an arch conservative pick would be consistent with a strategy of putting moderation, civility and compromise back in American politics.

Vengeance, Part II

Senator John McCain is also, at this point, a lame duck GOP Senator from Arizona, and he hates Trump as well.  He hates him so much he has already announced that he would like Barack Obama and George W. Bush to give eulogies at his funeral, rather pointedly excluding Trump, with whom he has been feuding for years.

Can you imagine a scenario where the GOP needs McCain’s vote to secure Trump’s nominee?   Say Susan Collins (or Flake or Corker or Murkowsky) sticks a stick in the confirmation bicycle wheel, and the vote looks to be 50-49 without McCain, who has not been in Washington, DC for months due to his illness. 

Imagine history repeating itself…John McCain flies across the country to cast the deciding vote, as he did with the final GOP health care vote – and sticking that famous thumb down once more.

The Keep-Roe Pledge

The number one issue on the table for a hard-right GOP court would certainly be overturning Roe v. Wade, which, despite some chipping away, has remained the cornerstone of abortion rights in America since its passage in 1973 (by a Court that included six justices that had been nominated by GOP presidents, Eisenhower and Nixon).

But the Roe overturn is not a given.  At least two GOP Senators, Susan Collins of Maine and Lisa Murkowski of Alaska, are on-the-record as pro-choice, and both represent states that, according to Pew polling, favor Roe by solid majorities (each over 60% pro-Roe).  Theoretically, one or both of them could insist on some kind of “keep-Roe” pledge from a nominee in the confirmation hearings and deny that nominee’s confirmation if they declined.

Of course, the Dems have Senators vulnerable on this issue.  Three Democratic Senators – Manchin of West Virginia, Donnelly of Indiana and Heitkamp of North Dakota, all voted to confirm Gorsuch, all represent states that do not favor Roe, and all are embroiled in tough re-election fights in November.

The pressure on all five of these Senators will be excruciating.  But if McCain does not make it back for a vote, and four of them voted against, Trump’s nominee would be denied.

The Roberts Court, For Real

Let’s say none of those potential obstacles slow the conservative justice confirmation train, and the court soon seats the Mighty Right Five of Alito, Thomas, Gorsuch, Roberts and New Judge.  Things could still go wrong for the conservative faithful.

John Roberts has been reading the accolades for Anthony Kennedy for days now.  How many times has the Court been referred to in that time as “The Kennedy Court,” in reference to the number of decisions that hinged on Kennedy’s vote (many of which Kennedy authored)?  Justice Kennedy has been the power center of the Roberts Court, not Roberts.

But with Kennedy’s retirement and a hard right replacement, John Roberts could become the new “swing vote” in the new Court, and he surely knows that.  As Chief and swing vote, he will hold more power than any justice in a century or more.  Roberts can decide cases and assign himself those opinions, opinions that ultimately could define his tenure more than anything that has happened in his first 14 years as Chief.

Roberts has already shown an ability to surprise and disappoint the conservatives, most notably in his failure to join his conservative colleagues in overturning Obamacare in 2012. Roberts found a loophole he could defend, (determining that the “mandate” was a “tax” and therefore acceptable), but clearly he could have sided with conservatives to strike the law.  But he did not; perhaps he did not want to be known as the Chief Reverser.  Roberts has a healthy respect for the sacred legal principle of stare decisis (essentially, the power of preserving precedent), and also for the legislative process that properly produced Obamacare.  Might he find the middle ground more often than expected, and become the new Kennedy, just as Kennedy replaced Sandra Day O’Connor in the middle?

Drifting Left

Another frequent phenomenon has been the well-documented tendency of some Republican-appointed nominees either being more liberal than presumed from the outset, or drifting left over time.  The list is long:  Earl Warren, Harry Blackmun, Douglas Souter and John Paul Stevens are among those that shocked their sponsors, all GOP presidents.  (No justice ever seems to drift rightward.)

Could it happen here?  It has not happened to Clarence Thomas, for sure, nor to Samuel Alito in his 12 years on the bench.  Roberts again is the most likely candidate.

Clar-Exit

And that brings us to Clarence Thomas. He could be impeached.  If the Democrats manage to take over the House, the Democrats could try this path. It is has been rather convincingly shown that Thomas lied under oath in his own defense of the sexual harassment charges in his own confirmation hearings.  In the aftermath of the #MeToo era, Thomas could become a target.  You never know.  Imagine the irony of, say, President Joe Biden naming Thomas’ successor – Biden, of course, presided over Thomas’ confirmation hearings as head of the Senate Judiciary Committee.

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All of these scenarios are long shots, individually, of course, but history shows there is no sure thing with the Supreme Court.  Add up the odds of each of these and they probably begin to approach materiality.