America is reeling because an 81-year-old justice, Anthony Kennedy, is retiring after serving on the U.S. Supreme Court for 30 years, and before we know who President Trump’s nominee is to replace him, Democratic presidential hopefuls and interest groups on the left are already expressing fierce opposition.
Anyone paying attention knows their disappointment in Trump’s pick is inevitable. But a partisan fight over a hypothetical permanent feature of jurisprudence for the next quarter-century will accomplish nothing. Children – Americans, Dreamers and migrants – will suffer as the social contract and safety net disintegrate. Amid the chaos that is the Trump administration, agents of change are challenged to keep their eye on the ball and stay focused on getting elected in November.
Republicans are in charge – they hold the White House, the U.S. Congress, 33 governor’s mansions and both chambers in 32 state legislative bodies. Mitch McConnell blew the filibuster rule out of the water in 2017, using the so-called “nuclear option” over the appointment of Neil Gorsuch, and he has vowed to confirm the next conservative justice before this fall’s midterm election. McConnell wants the confirmation completed for obvious reasons: to maximize leverage against Senate Democrats facing re-election in states where Trump won, like Indiana’s Joe Donnelly or North Dakota’s Heidi Heitkamp, and to gin up conservative voters before they head to the polls in November. Plus there’s the lifetime appointment of the fifth conservative justice with ultimate power to decipher the Constitution for the next 25 to 30 years when “the middle” of the Supreme Court is occupied by Chief Justice John Roberts. How far to the right President Trump’s next appointment sits remains to be seen.
Why are Republicans in charge of the government, which they profess is our enemy? Because they win elections, issues be damned. Trump was pro-choice before he was against it. He couldn’t care less about abortion. His calculus is simple math. He needs the religious right to win elections, and his appointment of a “pro-life” judge enables evangelicals to forget the president’s numerous personal sins and, apparently, ignore the carnage and death caused by gun violence.
It would be a shame if Democrats get so busy working on fixes to government that they lose sight of winning elections and never get to govern. Enthusiasm for fairness and transparency should not distract thoughtful liberals and lull them into designing various constructs of what politics should look like to clean things up and make the world a better place while their ruthless Machiavellian opponents laugh and skip their way into the chamber. Concepts like term limits, publicly financed elections and ranked-choice voting are floating like pretty blue party balloons, but Democrats who grab at them, hoping to be lifted into office by popular issues and righteous causes that win referendums, are at risk of being deflated. The air is taken out of these referendum issues by the Republicans in charge, who love to wield the power of government to pop and smash things.
Politics in its simplest definition is who gets what, when and how. The purpose of political parties is to win elections so that power can be wielded to shape policy and the course of the future. The nomination and confirmation of a Supreme Court justice is a calculated move specifically orchestrated to thrust the Republican Party over the high bar of the midterm elections. Trump and Republicans want nothing more than an overreaction by the left as a backdrop to the rising stock market. Attacking judicial nominees who have not yet had a public hearing and likely will sit on the United States Supreme Court might not be the best use of scarce resources.
It will be a bitter pill to swallow if independent Terry Hayes, a former Democrat and the only publicly financed candidate for governor of Maine, becomes the spoiler who puts Republican Shawn Moody in the Blaine House. It will sting if Democrat Chellie Pingree loses her congressional seat to another Democrat-turned-independent, Marty Grohman, because of ranked-choice voting. And Democrats should do no further damage to their odds of winning in November by crippling their candidates in moderate districts with hard-line ideological litmus tests on hot-button issues and shouting “no” to a judge before he or she has even been nominated. A jurist selected by the Federalist Society may be better than one selected personally by the president.
Cynthia Dill is a civil rights lawyer and former state senator. She may be contacted at her website:
Send questions/comments to the editors.
