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With Justice Anthony Kennedy’s retirement announcement, the battle is on, supposedly,* for the future course of the Supreme Court. There has already been plenty of heated, and some reasoned, video and written commentary on possible nominees. Some are campaigning for particular candidates, while others are leveraging the occasion to score political points for their position or party.
I fell into some of that myself late last week, raising my voice to a dear friend when we were really just differing on the level of analysis. Realizing I was too tactically focused, I had to think and research a bit more, leading to this piece. Beyond the kabuki theater run by Senators and pundits for multiple audiences, President Trump must play for both the short-term win and medium-term win.
The short-term win is getting his first choice confirmed before the 2018 midterms, with possible second-order benefits in House and Senate races. The medium-term win is a series of decisions by 2020, confirming President Trump’s ability to deliver on his promises, and distinguishing him from past Republican presidents, whose picks’ judicial records have been uneven to downright dismaying. The long-term, beyond his presidency, is unknowable, subject to future presidents’ Court nominees. The short- and medium-term campaign will be fought with a nominee from President Trump’s list of 25 possible Supreme Court candidates.
The surest path to the short-term win, confirmation of his nominee before the midterms, is to force the Senate to vote again on nominees they already confirmed as US Circuit Court judges during the Trump administration. There are seven such jurists, but we can distinguish among them with a political Goldilocks test. The potential winning nominee should be not too easily confirmed and not too narrowly confirmed, but confirmed with the support of just the right number and kind of Democratic Senators.
Too easily confirmed: Kevin Newsom, of the 11th Circuit, was confirmed 66-31, while Joan Larson, 6th Circuit, was confirmed 60-38. There is no way that so many Democrats would join the Republican Senators, unless they had good reason to believe these judges would “evolve” like Anthony Kennedy on the all-important social/religious issues. This would be a short-term win followed by medium- and long-term disaster.
Too narrowly confirmed: Amul Thapar, 6th Circuit, was the first nominee confirmed. Even the Senate Majority Leader’s support for a fellow Kentuckian could not pry loose any Democrats, as Judge Thapar was confirmed 52-44. Even worse, Don Willett was confirmed to the 5th Circuit 50-47. These two make the President hostage to NeuterTrump Senators acting in the interests of the Chamber of Commerce against the hated religious right.
Just right number and kind of Democratic votes: Three judges from the list of 25 have been confirmed in the past 18 months to Circuit Courts, with several Democratic Senators from heavily Trump-supporting states voting as they face reelection this year. David Stras, 8th Circuit, is the most recently confirmed (56-42). Allison Eid was confirmed to the 10th Circuit by a vote of 56-41. Finally, Amy Coney Barrett was confirmed to the 7th Circuit, 55-43. These are the most obvious choices for both short- and long-term wins.
All of the three “just right” candidates would represent a tremendous win for constitutionalism and President Trump. Judge Amy Coney Barrett might produce the biggest payoff short term with Democrats going full anti-Catholic bigot, befitting their party’s KKK heritage. Judge Eid’s life story refutes the “women as victim/life of Julia” narrative. Judge Stras got his education in Kansas, including law school. Indeed, all three in this group represent experience beyond the Ivy League.
* Given that Bush 43 appointee John Roberts is Chief Justice, and given his pretzel jurisprudence in protecting Obamacare, we may wonder if he will style himself the new voice of moderation, preserving the left’s gains against Evangelicals and Catholics, until they can be theologically converted from within.