Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

Election lessons: The Supreme Court and the New Tone

Jerry Stratton, November 16, 2016

Supreme Court Building

If you’re a Democrat, would you rather have Ted Cruz in the Senate, where he would tend to keep Congressional Republicans from moving left, or in the Supreme Court, where he would tend to keep President Donald Trump in line?

The establishment left is often hypocritical. They will claim, for example, that standard map markers are firearms crosshairs, and that this is unacceptable political rhetoric. And then when they don’t get their way in an election, they’ll promise to train “the full firepower” of themselves and their supporters on the President of the United States—as the ACLU did in a post-election mailing a few days ago, while those supporters are literally rioting and threatening to kill the president-elect.

This despite the fact that the left has a very simple means of restraining a Trump presidency. Before the election, Donald Trump released a list of judges he’d appoint to the Supreme Court. All of them are conservative, and all of them are distrustful of executive lawmaking.

If the left is not just trolling their members for more money—if they are truly afraid that Trump will act in a totalitarian manner—what they should do is team with conservatives and make sure that Trump only nominates justices from that list. No judge on that list will allow Trump to exercise totalitarian powers. They are not judges who acquiesce to the mood of the day or to executive orders. That’s what makes them conservative.

The thing is, Democrats have pretty much ensured that Donald Trump will get whoever he nominates. Democrats threatened before the election, when Democrats thought that ignoring the working class was a winning strategy, that they were going to get rid of the supermajority requirement for bringing Supreme Court justices to a floor vote after they won the Senate.

They already got rid of the supermajority requirement for other positions in 2013 when they still held the Senate.

Democrats can do two things if they want to overcome their past intransigence and save the filibuster—and thus have an influence on some of Trump’s nominees. First, they really should apologize for what they did to Robert Bork. Conservatives are still using Bork as an example of bad behavior on the left, and for good reason. The Democrats’ behavior with Bork, a highly-rated judge, was the start of a decades-long Lucy-pulling-the-football series of antics. They’ve continued this, on and off, until it peaked during George W. Bush’s presidency.

A sincere apology, a mea culpa, and an acknowledgement that Republicans are justified in delaying until after the election, as Democrats tried in 1987 and again argued for in 2005, would go a long way. In 1987, they delayed until it became clear Reagan’s successor was going to win in 19881, and then they acquiesced to a far more moderate replacement who has since been on the left side of the court as often as he’s been on the right.

If Obama had chosen to nominate a judge as close to the middle as Anthony Kennedy was, the Senate would have been forced to approve. He didn’t do that. He just relied on the media to claim Merrick Garland was that moderate. I suspect that even now if Obama were to nominate someone just moderately less to the left as Garland, that even with the Republican win this year they’d be hard-pressed to not bring it to a floor vote.

But he’s arrogant and supports executive overreach—that’s why he nominated Garland in the first place2—and isn’t likely to do that.

Second, they should offer to forego using the filibuster rule3 a few times, in order to keep the filibuster rule in place. That is, if they really want to change the tone of the beltway, offer to support a floor vote now on the first two people Donald Trump nominates for the Supreme Court after January 20… but only as long as that person is on Trump’s pre-election list.

If this sounds like a lot to offer, remember that due to the bumbling pre-election threats by Democrats such as Tim Kaine and Harry Reid, Republicans don’t have much, if anything, to lose by simply ending the filibuster rule without regard to the Democrats. Democrats will complain, but their complaints will be obviously hypocritical. They were planning on doing it themselves.

Promising to support conservative justices would be self-serving in the best possible way: it would unite conservatives and the left to force the President to nominate justices who won’t be friendly to presidential overreach. It would ensure that Donald Trump would not nominate someone friendly to misuse of executive power instead of a conservative on that list. And it would do so by leveraging his own pre-election promise, an actual list of Supreme Court justices.

If successful, which it’s hard to see how it wouldn’t be, it would ensure a tough time for any totalitarian moves on Donald Trump’s part—but also for the next president, whoever that is.

And it really shouldn’t be hard for the left to get on board with conservative justices. It wasn’t the left side of the court who supported medical marijuana in states; nor was it the left who supported real curbs on eminent domain power to protect the poor. It was the conservatives. Back in 2005, I wrote about a People for the American Way mailer saying we needed more left-wing justices, who they claimed would “protect our rights and freedoms”. But:

Under the “Protectors” column, every justice listed was in the home-taking majority in Kelo v. New London and the anti-patient majority in Gonzales v. Raich. Of the remaining five who are not protecting our rights and liberties, three of them—O’Connor, Thomas, and Rehnquist—voted to protect our rights and liberties in Raich.

Of course, the left should only attempt to keep Trump to his promised justices if they really want to constrain the president’s power. If they want to preserve the opportunity for future presidents to also exercise unlimited power, well, that’s usually not hard to do in Washington, DC. It won’t require any special cooperation, just business as usual.

In response to Election 2016: Another fine mess you’ve gotten us into.

  1. On June 26, 1987, Justice Lewis Powell retired. He resigned effective immediately, and did not stay on.

    On July 1, 1987, President Reagan nominated Judge Robert Bork, who had “the highest rating” from the ABA for judges from at least 1981 on.

    The Democratic Senate refused to vote until October 23, 1987, and then voted him down.

    On November 11, Reagan nominated Anthony Kennedy. He wasn’t confirmed until February 3, 1988, eight months after Powell retired, and only after it became clear Reagan’s successor was going to win in 1988.

  2. “In a 2000 case, Garland voted that a Clinton administration practice of retaining gun registration information for six months through the National Instant Check System was legal despite a 1968 federal law prohibiting federal gun registration and the 1994 law that created the instant background check that also banned the retention of such information.”

    Despite two laws prohibiting the President from exercising this power, Garland voted in favor of the President exercising this power.

  3. It’s called the filibuster rule rather than just a filibuster, because it no longer requires an actual filibuster, most Senators being too lazy to actually perform one, unlike Texas Senator Ted Cruz. If Democrats and the left really wanted to be machiavellian, they would offer to support anyone on the list, plus Ted Cruz, to get an anti-establishment firebrand out of the Senate and a justice who strongly dislikes Donald Trump.

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