What to expect in Kennedy successor confirmation hearings . . . and why it won’t be easy to get the kind of Justice we want

Photo credit: CKnight70 via Flickr

By Dan Calabrese

I’m excited too. How could you not be?

The prospect of a fifth Supreme Court Justice who is really committed to an originalist reading of the Constitution holds the prospect of far more than just overturning a few past rulings we’ve had to live with for far too long. There’s that. But there’s also the very appealing prospect that left-wing judges at various levels of the judiciary will realize they too have to follow the law rather than using their positions on the bench to serve as legislative and executive backups for hapless Democrat politicians (especially now that unions will not be able to serve as the campaign cash cows they used to be, and you should thank Justice Kennedy among others for that).

It’s absurd that when a Republican president takes an action that’s clearly within his constitutional authority, Democrats can run to a federal district judge like Hawaii’s Derrick Watson who “strikes it down,” and then the whole thing has to be litigated all the way to the Supreme Court before it’s decided the president can indeed do his job. But that’s what we’ve been dealing with throughout the Trump presidency.

Justice Kennedy could be frustrating at times, but he was with us a lot more than he was against us. He’s also in his 80s and he’s not going to live forever, and he did us a great favor by not hanging around until we risked his replacement by a Democrat president. You may not think Donald Trump is Ronald Reagan – and neither do I – but Kennedy seems to recognize that he best honors the legacy of the man who appointed him by letting Trump name his replacement. And hey, Reagan was only one out of three when it came to truly exceptional SCOTUS appointments. Antonin Scalia was a superstar. Kennedy and Sandra Day O’Connor were hit and miss.

So far you’d have to say Trump is one for one with Neil Gorsuch, which once again reminds some of us why we voted for him in spite of . . . everything.

But what are Trump’s chances of going two for two? The quick and obvious response the news of Kennedy’s retirement was to say, “Finally! Now we can get a fifth Justice who actually believes in the Constitution all the time!” (And who is hopefully young enough to be around for awhile.)

Sounds great. Can we actually get it done? Not so fast.

To be sure, Chuck Schumer did us a huge favor by attempting to filibuster Gorsuch, forcing Mitch McConnell to nuke the filibuster for Supreme Court confirmation votes. That means this time around, during an election year with the ideological balance of the court more at stake than it was with Gorsuch, nervous Republicans won’t have to grapple with the nuclear option. They’ve already dropped the bomb. They don’t have to do it again. Now they can confirm Trump’s nominee with a simple majority.

Ah, but if it were only that simple.

Remember, Republicans only have a 51-49 majority, and in reality they don’t even have that. John McCain does not go to Washington at all anymore, and no one knows how long he has to live. He could conceivably make a special trip to vote on a SCOTUS confirmation, but there is no guarantee he’s healthy enough to do so, nor is there any guarantee he wouldn’t use such a trip as an opportunity to stick his finger in Trump’s eye and vote no out of sheer spite. That would be a very McCain thing to do.

Rand Paul is not even really a Republican. He’s a libertarian who ran with an R next to his name in order to get elected. He’s entirely unpredictable. Nevertheless, if Trump nominates someone who can be described as a constitutional originalist, Paul will probably vote to confirm.

Susan Collins and Lisa Murkowski are bigger problems.

You have to realize that the left is going to go absolutely apes*** insane over this vote. You think they’re bad now with all the restaurant ejections and calls from Maxine Waters to harass everyone everywhere? All that over immigration enforcement? Wait until they think they’re going to lose their right to engage in promiscuous sex and toss any unintended babies in the trash. We’re looking at end-of-times stuff here.

Any nominee who appears more in the Scalia mode than in the Kennedy/O’Connor mode will receive the most intense rectal exam of all time. Every word of his/her legal opinions will be inspected not only for its actual meaning but for any liberal’s conceivable interpretation, no matter how absurd. The nominee may be impeccably qualified and entirely unobjectionable in any real sense. That will not matter. The left will find a way to portray him or her as a monster, and the media will dutifully embrace whatever narrative the left comes up with – breathlessly telling us day after day about the “controversy”.

Collins and Murkowski will be under intense pressure to demand some sort of assurance from the nominee that he/she will not overturn Roe v. Wade. No nominee can say how he or she will vote on a future case, of course, but any past discussion about the jurisprudence involved in the case will be scrutinized to the enth degree. If none can be found, then a discussion will be had.

There is some talk that Trump can help himself by nominating someone recently confirmed to a lower court with votes from Collins and Murkowski, as well as some Democrats. The thinking is that senators will find it hard to deny a nominee they just voted for within the past year or so. That will not matter. They will claim there is “new information” or they will simply assert this is different because the balance of the Supreme Court is at stake.

So how to win?

Obviously, the most important thing is to nominate someone whose qualifications cannot be questioned. No more Harriet Mierses or G. Harrold Carswells, although the latter received the most inventive defense I’ve ever heard of an uninspired nomination. When Carswell was criticized as a mediocre judge, Nebraska Sen. Roman Hruska said mediocre people deserve a little representation on the Supreme Court.

Yeah. There’s a reason you don’t hear about the Supreme Court career of G. Harrold Carswell.

The nominee has to be top-notch. The nominee also has to be very capable of defending his or her own record. A generation ago, George H.W. Bush looked for a nominee with no paper trail so there would be nothing anyone could seize on. That’s how we ended up with David Souter.

The nominee also needs to have an excellent record of rulings not being overturned by higher courts, as that tends to indicate serious flaws in legal reasoning. (Unless you’ve been consistently overturned by the Ninth Circuit, in which case you’re probably the best judge in the world.)

Finally, the nominee has to be a serious legal scholar and not a mere political ideologue who got appointed to the bench. It should be the law, not politics, that has driven this person’s career.

The electoral map can also help here. If Trump clearly nominates a strong, well-qualified candidate, and Democrat attempts to smear the nominee are obvious nonsense, it will be hard for Democrat senators running for re-election in red states to join in the borking. Joe Manchin and Heidi Heitkamp want to be re-elected. If they know it will hurt their chances to follow Chuck Schumer’s lead by opposing an obviously fit nominee, there’s a chance they’ll vote yes. That would help mitigate the pressure that will be brought to bear on Collins and Murkowski.

By the way, no matter who we get, it would be hard to get a better run of rulings than the ones we’ve gotten this year with Kennedy still on the bench. In many ways it’s been the Supreme Court’s finest hour. But the left’s assault on everything via the courts will never stop, so we need a solid conservative majority going forward. We’ve got a chance to make it happen here, but don’t think this is going to be a slam dunk. It’s going to be one of the toughest things we’ve ever had to do in the U.S. Senate.

Dan writes Christian spiritual warfare novels and does all kinds of other weird things too. Follow all his activity by liking him on Facebook!