Trumping the Court: A Look at the Hand the President Must Play

 

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.

There are 17 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    Thank you for a very well-reasoned post. I hope it prevails.

    • #1
  2. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    @cliffordbrown, I just want to be certain I understand. You’re proposing that the best pick would be from the “just right” candidates because any one of them has the greatest likelihood of being confirmed with the help of the Democratic Senators before the November elections. Right?

    • #2
  3. Jules PA Member
    Jules PA
    @JulesPA

    Interesting. 

    • #3
  4. TeamAmerica Member
    TeamAmerica
    @TeamAmerica

    Scott Adams recently noted that a candidate”s looks  are also a factor, and both Gorsuch and Barrett are good-looking. So that may be a factor to consider.

    Also. given that the ‘Blue Wave’ seems to be more a trickle, and  more Dem senators are facing election, many in states that voted for Trump, I don’t necessarily agree that it is critical to get a nominee on the Court before November.

    • #4
  5. Bob W Member
    Bob W
    @WBob

    He may as well nominate all three at once. The dems are probably going to go down that road themselves as soon as they get a chance. It might even help at least one get through. After all the bitching and posturing about how outrageous it is, including from Republicans, a lot of senators will be able to vote two of them down to show everyone they aren’t Trumps puppets, while giving Trump one. 

    • #5
  6. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    Susan Quinn (View Comment):

    @cliffordbrown, I just want to be certain I understand. You’re proposing that the best pick would be from the “just right” candidates because any one of them has the greatest likelihood of being confirmed with the help of the Democratic Senators before the November elections. Right?

    Half right. “Just right” is both a better than 50/50 chance of confirmation before the midterms, and a resulting record of constitutionalist/originalist opinions, before the 2020 presidential campaign. I have left out the cynical, dishonest public maneuvering, by several Republican Senators, that makes doubtful a bare Republican confirmation for a candidate who seems likely to rule on “social” issues as the GOP platform has promised for decades. That is why I believe these Senators must be pinned down, with the threat of irrelevance, and face being discredited for Senate GOP leadership.

    Make them vote again on a candidate they already confirmed in the past 18 months. Make them face the SCOTUS confirmation along with several Democrats desperate for reelection, who also will have to explain, to strongly Trump-supporting electorates, flip-flopping from support (Court of Appeals) to opposition (Supreme Court). Make the National Republican Senatorial Committee own their behavior, and Senate leadership’s “failure” to impose party discipline. Let Senate Majority Leader McConnell, and all his pundit boosters, rise to the occasion or fail without excuse.

    • #6
  7. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    Bob W (View Comment):

    He may as well nominate all three at once. The dems are probably going to go down that road themselves as soon as they get a chance. It might even help at least one get through. After all the bitching and posturing about how outrageous it is, including from Republicans, a lot of senators will be able to vote two of them down to show everyone they aren’t Trumps puppets, while giving Trump one.

    Not how it works. You pick one nominee per vacancy. Having a back-up plan is smart, so long as it stays between the President’s ears and never leaks. The only useful “leak” would be something like a planted story of searching for Attila the Hun, but being talked out of it by John Kelly. Create the atmosphere for McConnell that there will be no escape, no Chamber of Commerce candidate behind the first “social conservative” approved candidate.

    • #7
  8. Bob W Member
    Bob W
    @WBob

    Clifford A. Brown (View Comment):

    Bob W (View Comment):

    He may as well nominate all three at once. The dems are probably going to go down that road themselves as soon as they get a chance. It might even help at least one get through. After all the bitching and posturing about how outrageous it is, including from Republicans, a lot of senators will be able to vote two of them down to show everyone they aren’t Trumps puppets, while giving Trump one.

    Not how it works. You pick one nominee per vacancy. Having a back-up plan is smart, so long as it stays between the President’s ears and never leaks. The only useful “leak” would be something like a planted story of searching for Attila the Hun, but being talked out of it by John Kelly. Create the atmosphere for McConnell that there will be no escape, no Chamber of Commerce candidate behind the first “social conservative” approved candidate.

    Are you sure about that? The court doesn’t have a legally mandated number of judges. Even if there hadn’t been a vacancy, Trump could have nominated a judge or two. If the senate confirmed, the Court would gain a judge or two. Didn’t FDR do it? In any case the libs are sure to do it if the court becomes solidly conservative, as soon as they can. 

    • #8
  9. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    TeamAmerica (View Comment):

    Scott Adams recently noted that a candidate”s looks are also a factor, and both Gorsuch and Barrett are good-looking. So that may be a factor to consider.

    Also. given that the ‘Blue Wave’ seems to be more a trickle, and more Dem senators are facing election, many in states that voted for Trump, I don’t necessarily agree that it is critical to get a nominee on the Court before November.

    Failure to force the vote before the election lets more NeuterTrump Republicans and #Resistance Democrats win in November. It demotivates MAGA supporters. If the Democrats are not put on record before the election, they can posture as independent right back into office. It is essential to compel GOP leadership to live up to decades of platform promises.

    • #9
  10. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Clifford A. Brown: Judge Amy Coney Barrett might produce the biggest payoff short term with Democrats going full anti-Catholic bigot, befitting their party’s KKK heritage.

    Isn’t this exactly the behavior that would really embarrass those handful of Democrat Senators in the red Trump states so that they would vote to confirm before facing the voters in November? Could even keep all Republican Senators in the fold.

    • #10
  11. Bob W Member
    Bob W
    @WBob

    Right, I just looked it up. It looks like Packing the court would require the approval of Congress as a whole not just the senate. But I’ve already heard them talking about it on MSNBC in discussing possible ways to counter the coming conservative majority on the court. 

    • #11
  12. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    Bob W (View Comment):

    Clifford A. Brown (View Comment):

    Bob W (View Comment):

    He may as well nominate all three at once. The dems are probably going to go down that road themselves as soon as they get a chance. It might even help at least one get through. After all the bitching and posturing about how outrageous it is, including from Republicans, a lot of senators will be able to vote two of them down to show everyone they aren’t Trumps puppets, while giving Trump one.

    Not how it works. You pick one nominee per vacancy. Having a back-up plan is smart, so long as it stays between the President’s ears and never leaks. The only useful “leak” would be something like a planted story of searching for Attila the Hun, but being talked out of it by John Kelly. Create the atmosphere for McConnell that there will be no escape, no Chamber of Commerce candidate behind the first “social conservative” approved candidate.

    Are you sure about that? The court doesn’t have a legally mandated number of judges. Even if there hadn’t been a vacancy, Trump could have nominated a judge or two. If the senate confirmed, the Court would gain a judge or two. Didn’t FDR do it? In any case the libs are sure to do it if the court becomes solidly conservative, as soon as they can.

    Yes it does. The Congress, not just the Senate, controls the number of seats on the Supreme Court, along with the structure of subordinate courts, by statute. FDR proposed a scheme to expand the Court, but it was crushed by a Democrat controlled Congress as undermining judicial independence. 9 has been the number since 1869.

    • #12
  13. toggle Inactive
    toggle
    @toggle

    Clifford A. Brown (View Comment):

    The only useful “leak” would be something like a planted story of searching for Attila the Hun, but being talked out of it by John Kelly.

    Doesn’t Harriet Miers deserve a second look ?
    Good times.
    We got Alito instead (art of the deal ? …).

    • #13
  14. Joseph Stanko Coolidge
    Joseph Stanko
    @JosephStanko

    Bob W (View Comment):
    The court doesn’t have a legally mandated number of judges.

    I think you meant to say “doesn’t have a Constitutionally mandated number of judges.”

    Article III is actually quite short, most of how the federal court system operates was established by act of Congress — and thus can be changed by future acts of Congress.  This is a potential tool to rein in activist judges that Congress should use from time to time IMHO.

     

    • #14
  15. Franco Member
    Franco
    @Franco

    I don’t know too much about this subject, but I sense you are right about the calculation needed. At this point, Trump should pick the most conservative candidate who can pass.

    No need to go to the battlements and expend political capital on behalf of the Republican naysayers and perpetual ingrates. 

    I want Trump re-elected in 2020. By the end of that term there will almost certainly be another vacancy. Then he can have a war about the nominee.

    • #15
  16. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    Franco (View Comment):

    I don’t know too much about this subject, but I sense you are right about the calculation needed. At this point, Trump should pick the most conservative candidate who can pass.

    No need to go to the battlements and expend political capital on behalf of the Republican naysayers and perpetual ingrates.

    I want Trump re-elected in 2020. By the end of that term there will almost certainly be another vacancy. Then he can have a war about the nominee.

    Pass *and* generate a record on which he can boast, as he has already done with Gorsuch. I think it will take some arm twisting, and it could grow political capital, not spend down a book of political travelers checks. This is about a core GOP plank for decades, so helping the Senate GOP get to yes is good for the party’s reputation, broadly.

    (I do not believe we would see Roe fully reversed, rather it might be limited in line with majority popular opinion — likely 5-4, Roberts writing for the Court.)

    • #16
  17. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    The American people want to know where Senators really stand before the midterms, according to an NBC poll. Most want the Senate to vote on confirmation before the voters vote for or against the Senators.

    Sixty-six percent of Democrats and 60 percent of Republicans said Trump’s nominee would be an important factor in their vote in the midterms. However, less than half of independents, 46 percent, said it would be on their mind when casting their November ballot.

    The vast majority of Republicans surveyed, 85 percent, said the Senate’s vote on the nominee should take place before the election. Roughly six in 10 Independents, or 61 percent, agreed. However, more than half of Democrats, 55 percent, believe the voting on a new justice should wait.

    This strengthens President Trump’s hand, and pressures the Senators who confirmed 7 of the list of 25 to the Courts of Appeal.

    • #17

Comments are closed because this post is more than six months old. Please write a new post if you would like to continue this conversation.