Alexander's Column

Kennedy Retires — SCOTUS Tidal Change?

The retirement of Justice Kennedy has consigned Democrats to an alternating bipolar state of apoplexy and sheer panic.

Mark Alexander · Jun. 28, 2018

“It has long, however, been my opinion, and I have never shrunk from its expression … that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” —Thomas Jefferson (1821)

Justice Anthony Kennedy announced yesterday his much-anticipated retirement from the U.S. Supreme Court. He has been a pivotal fifth vote on the Supreme Court since his 1987 appointment by Ronald Reagan. This week’s SCOTUS decisions make clear just how important his vote has been on some issues.

We applaud Justice Kennedy’s decision to retire, especially given his increasing lack of respect for Constitutional integrity. It is long past time for Bill Clinton’s now 85-year-old nominee Ruth Bader Ginsburg to go, whose senility is now apparent.

Replacing Kennedy with a conservative nominee will significantly impact those decisions, but the likelihood that Donald Trump will get one more nominee appointed will help seal the Court’s makeup for a decade or more.

Kennedy’s announcement has consigned Democrat Party leaders and their Leftmedia talkingheads into an alternating bipolar state of apoplexy and sheer panic.

Democrats are outraged that Trump will nominate and the Republican Senate will confirm an “originalist” from Trump’s list of nominees. Of course, it is not the Trump appointee they fear, it is our Constitution.

By “originalist,” Republicans mean one who will abide by his or her oath “to support and defend” our Constitution and the Rule of Law it enshrines. Democrats prefer judges who take their marching orders from leftist political handlers and who subscribe to the errant notion of a so-called “living constitution” — one that would be, in the words of Thomas Jefferson, “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Jefferson noted that a Supreme Court in the hands of such jurists would constitute a “Despotic Branch”: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their, own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Attempting to undermine the legitimacy of the next Supreme Court nominee, much as Democrats have endeavored to undermine the legitimacy of Donald Trump’s election, Senate Minority Leader Chuck Schumer (D-NY) insists that calling for a vote before the upcoming midterm elections is the “absolute height of hypocrisy.”

According to Schumer, “[Republicans] should follow the rule they set in 2016, not to consider a Supreme Court justice in an election year.” But that was not the rule.

Schumer is claiming the GOP has refused to allow nominees in an election year. He is referring to the March 2016 nomination of Merrick Garland to replace the late Antonin Scalia ahead of that year’s presidential election.

But as The Washington Post’s Aaron Blake observes, “Democrats are protesting too much. The GOP did argue in 2016 that a Supreme Court vacancy shouldn’t be filled until after voters had their say in the coming election, but their argument was about who gets to nominate the justice — not who gets to confirm him or her. It was about presidential election years, not midterms.”

There was precedent for delaying a Supreme Court nomination ahead of a presidential election.

As Senate Majority Leader Mitch McConnell has made plain, “We’re following the ‘Biden rule.’ Biden was chairman of the Judiciary Committee in 1992, in a presidential election year. He said the Senate should not act on filling a Supreme Court vacancy if it had occurred [in a presidential election year]. … So, all we’re doing … is following a long-standing tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year.”

The Post’s Blake concludes, “Whatever you think of the justification offered to block Garland, it was clearly in reference to presidential election years, not midterms.”

Indeed, Democrats have set the precedent on such appointments.

On May 10, 2010, Barack Obama nominated leftist Elena Kagan to replace retiring Associate Justice John Paul Stevens. That was a midterm election year when Democrats were anticipating (and were handed) significant losses in the House and Senate. She was confirmed ahead of that midterm election by the Democrat-controlled Senate and assumed office August 6, 2010.

So a Senate confirmation of a nominee in a midterm election year violates no rules or traditions.

In 2013, then-Senate Majority Leader Harry Reid set another precedent, invoking the so-called “nuclear option” rule change to end the filibuster for judicial nominees — the only way he was going to get Obama’s nominees past Republicans with such a thin Democrat Senate margin.

At the time, McConnell actually warned Reid that his “simple majority vote” precedent would come back to haunt him. “You’ll regret this, and you may regret this a lot sooner than you think,” declared McConnell. And in 2017, it certainly did come back around, with the Trump nomination and Republican Senate appointment of Neil Gorsuch, after Trump’s unanticipated election.

For his part, McConnell will go down in history as the most consequential Senate leader in the early 21st century.

While Donald Trump is again pleading for an end of the legislative filibuster, McConnell says, “The votes aren’t there to change it. They just aren’t there. … I don’t think the legislative filibuster, which has been around for a long time, is a problem. And it does, I think, generate on many occasions kind of a bipartisan solution, and I don’t think that’s always bad for the country.”

Republicans will likely affirm Trump’s Supreme Court nominee ahead the Court’s next term in October.

But that is going to be a rallying call for both Republicans and Democrats.

In my morning (mourning in this case) fundraising appeal from DNC Chairman Tom Perez, he exclaims, “If there was ever any question whether the November elections would be the most important of our lifetime, Justice Kennedy’s retirement from the Supreme Court should remove all doubt. There’s never been a more important moment to show you stand with Democrats.”

And in case you were wondering, Perez went on to outline the Demos’ 2018 midterm strategy hot buttons: “If you believe in a woman’s right to choose and a worker’s right to bargain, health care is a right for all, a Muslim ban is fundamentally un-American, equality for LGBTQ people, Dreamers should be able to stay, climate change is an urgent threat to our economy, our environment, and our children’s future, we should make it easier for people to vote, not harder, help elect Democrats in November.”

Because Democrats believe that women voters are emotionally incontinent idiots, of the issues above, they will concentrate heavily on their family immigrant separation charade and their pro-abortion constituency. Keep in mind that in a key Democrat primary this week, a young Democrat socialist defeated high-ranking House Democrat, Joe Crowley (D-NY). She did so on a wave of emotive immigration sentiments among young women.

Fortunately for Republicans, 10 Democrat senators are defending seats in states that Trump won in 2016, and for some, that will soften their lockstep vote on Trump’s nominee. But there is the question of whether Sen. John McCain will be able to vote, given his dire health issues.

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