Judiciary

Senate GOP Holds Key for Supreme Court

With a razor-thin majority, there are several to watch, including Collins, Murkowski and Flake.

Robin Smith · Jul. 2, 2018

The retirement of Justice Anthony Kennedy is a tectonic shift in America’s judiciary, opening the door to a second appointment by President Donald Trump. The resulting tsunami will move the Court further to operate more as an originalist group of jurists, assuming that Trump is Trump — meaning that he’ll keep another campaign promise.

Based on Trump’s Nov. 17, 2017 list of 25 jurists he’d pick from, they all have “originalist” credentials — those who will abide by his or her oath “to support and defend” our Constitution and the Rule of Law it enshrines. They will not be activists driven by a conjured-up notion of a “living constitution.” That same list produced Justice Neil Gorsuch, who was cast in the same mold as the late conservative icon, Justice Antonin Scalia.

The political Right has cheered as the “winning” continues. Trump’s 17-month tenure was given a second Supreme Court vacancy following recent rulings that favored the Christian cake baker and stiff-armed public unions, just to name two decisions that reflected a more conservative application of the law. Social media captured the amplified hysteria of Democrats who were busy posting pictures of coat-hangers, implying that women in the 21st century would use a thin piece of metal to abort their own children if Roe v. Wade were to be overturned with a more right-leaning jurist.

While there is hope that Supreme Court justices will apply the true Rule of Law as written and not reconstructed through the prism of either culture or political correctness, let’s not forget that the Senate has proven to be an unpredictable force in the Republican-controlled government during the days of Trump. Put simply, there are a few Republican senators who are being more vocally adversarial with Trump than they ever were with Barack Obama.

Article II, Section 2, Clause 2 of our Constitution notes that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court, and all other Officers of the United States.” This advice and consent will not be a rubber stamp simply because the president and 51 senators who caucus as Republicans run under the same partisan banner.

Once Trump makes his pick, that nominee will head first to the Senate Judiciary Committee to face its 11 GOP and 10 Democrat members. But look who sits on that committee — Arizona’s Jeff Flake. Democrats stick together in almost every single key vote, but Flake has been a leader within the Never-Trump effort, magnified by his grandiosely announced departure from the Senate. Trump’s nominee should know in advance the hostilities that await, not based on qualifications, constitutional merit or anything other than whose nominee he or she will have become.

After a prehearing investigation into the nominee’s background, the Judiciary Committee will host a public hearing with questions about philosophy, which, in this case, will most certainly revolve around Roe v. Wade. The message being sent by Democrats to fuel their base’s anger is that they must stop any efforts to reverse this “settled” law. This will conclude with a report of a favorable or negative recommendation or, a third choice to fail to report that blocks a full Senate vote.

When you think of this open hearing, you’re right to remember the 1987 hearing of Robert Bork. The resulting public flogging of Bork, a highly qualified man selected by Ronald Reagan but who was labeled an “ideological extremist,” resulted in a new word in the American lexicon: “Borking.”

When Bork was rejected, Anthony Kennedy was the second choice to move past then Judiciary Committee Chairman Joe Biden and his slanderous gang. This shameful treatment has only been surpassed by the “high-tech lynching” that was described by the Court’s second black justice, Clarence Thomas, in his own words.

To fully grasp the fury of the nominee offered by President George H.W. Bush in 1991, read his entire quote responding to the public parade of allegations and political theater as Thomas spat out his words with disgust: “This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

Yep. Uncle Joe Biden was Senate Judiciary Chairman in 1991, too, which mounted the opposition. Yet he and Ted Kennedy failed to stop Thomas’s confirmation. After 107 days of battle, the Senate voted 52-48 to confirm Thomas.

Thirty-one years later and Democrat fearmongering is using the same script. It’s just that in 2018, the wavering of some Republican senators will be related to their personal dislike of President Trump.

There are two Republican women who are sure to be the darlings of the Left, Susan Collins (R-ME) and Lisa Murkowski (R-AK). While both have indicated their commitment to their “pro-choice” stances, both have also edged away from making statements that a litmus test of support of Roe v. Wade would be applied to earn their votes.

Murkowski stated, “I don’t think it should be the only factor for anybody. It’s not as if those are the only matters that come before the Supreme Court.” Collins parsed a little more carefully to say, “I do get a sense from them on whether or not they respect precedent. And from my perspective, Roe v. Wade is an important precedent and it is settled law.”

Why do these two matter so much? Today’s Senate features 51 Republicans, 47 Democrats and two “Independents” who caucus with Democrats. That math, even employing the majority rule that works outside the filibuster-controlled Senate, doesn’t add up to a Trump win for a successful constitutional confirmation.

Senate Republicans hold the critical role in the future of the U.S. Supreme Court for generations to come. Yes, conservatives should worry and be prepared to make calls.

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