Justice Anthony Kennedy’s announcement Wednesday of his retirement from the Supreme Court has sent the left into a tizzy. Although Justice Kennedy has often sided with the more conservative-leaning Justices in 5-4 decisions, he has also joined the four liberal-leaning Justices as the swing vote on several contentious cases important to the left involving such issues as abortion rights and same-sex marriage. With Justice Kennedy’s retirement, which will take effect at the end of July, the door is open for President Trump to nominate a more reliable conservative replacement in the mold of his first pick, Justice Neil Gorsuch. "We have to pick a great one. We have to pick one that's going to be there for 40 years, 45 years," President Trump told supporters at a campaign rally Wednesday night in North Dakota.
The president said earlier in the day that the replacement process will "begin immediately" and indicated that his nominee would come from a list of 25 candidates that the Federalist Society and Heritage Foundation helped put together for the president’s consideration. Senate Majority Leader Mitch McConnell said that the Senate “will vote to confirm Justice Kennedy's successor this fall." That task will be made easier because of the elimination of the Senate filibuster rule for judicial nominees, including for the Supreme Court. However, the Republicans hold a slim 51-49 majority in the Senate, including the ailing Senator John McCain of Arizona, Republican senators hostile to the president such as Senator Jeff Flake, and more moderate pro-choice Republican senators such as Susan Collins (Maine) and Lisa Murkowski (Alaska) who will be put off by a nominee perceived as an opponent of abortion. Assuming the Senate Democrats all oppose any nominee put forward by President Trump, securing Senate confirmation of President Trump’s nominee before this year’s mid-term election will not be easy.
Heeding the call of their radical left base and a pliant Trump-hating media, Democrats are promising total resistance to even meeting with the president’s nominee before the mid-term elections, let alone holding any hearings or an up or down floor vote. They are still sore over what they view as the Supreme Court seat stolen from the left in 2016 when Senator McConnell, backed by the Republican majority in the Senate, refused to allow hearings or a vote on former President Obama’s nominee to fill the seat left vacant by Justice Scalia’s passing, Judge Merrick Garland. At the time, Senator McConnell issued a statement declaring, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
The left is now calling upon the Republican majority to follow what they are calling the "McConnell rule” and allow the voters in those states conducting elections for senator this November to have their voice heard before any nominee to replace Justice Kennedy is considered by the Senate. Senate Minority Leader Chuck Schumer explained the contorted “reasoning” equating a presidential election year and a mid-term election year as follows:
“Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year. Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now as Leader McConnell thought they should deserve to be heard then.”
Senate Minority Whip Dick Durbin concurred, declaring: “The American people will decide the majority in the United States Senate. Following the tortured logic of Mitch McConnell, let’s let the American people speak.” Other Senate Democrats, including Kirsten Gillibrand, Kamala Harris, Bernie Sanders, Dianne Feinstein and Elizabeth Warren, jumped on the so-called “McConnell rule” bandwagon to delay any Senate hearings or vote until after the mid-term elections. They have little choice if they want to avoid loud protests and backlash at the polls this November from their own base.
MSNBC host Chris Matthews described the stakes in his usual strident manner. “I don’t think the Democrats should allow meetings to occur with Trump’s nominee to fill this vacancy by Justice Kennedy,” Matthews said. “I think they have to fight eye for an eye for what happened in ‘16 when the Republicans, led by Mitch McConnell, refused to even consider or even meet with Merrick Garland. There is no way politically the Democratic base will stand for any kind of hearings or vote for a Trump nominee before the election.”
Expect from the left their usual appeals to raw emotion and scare-mongering. Expect attempts to grind the Senate to a halt and to even deny a quorum for voting through theatrical walk-outs or boycotts of Senate committee and floor sessions. We can also expect the left to engage in mass confrontational protests and uncivil disobedience, which could well involve attempts to occupy offices and, following the example set by pro-illegal immigration activists, to harass Republican Senators and any wavering Democrats up for re-election this year in red states. Such harassment would take place not only at the targets' offices, but also at their homes, restaurants or wherever the left’s targets can be found. Senator Warren of Massachusetts is already fanning the flames. She declared at a rally on Thursday in front of the Supreme Court, "People are rising up. Donald Trump is not the king. We will fight today, we will fight tomorrow and we will fight until this country lives up to its values." Other Democrat senators joined her at the rally.
There is no valid comparison between Senator McConnell’s action in 2016 and what Democrats in the Senate are asking for now. "This is not 2016,” Senator McConnell said in response to the Democrats’ attempt to invoke the so-called McConnell rule. “There aren't the final months of a second-term constitutionally lame duck presidency with a presidential election fast approaching. We're right in the middle of this president's very first term."
The differences are even more fundamental. A presidential election is national in scope. Americans across the country have the opportunity to make their voices heard on the direction of the Supreme Court, among other issues, when they cast their votes for president. Along with President Trump’s election, the Senate remained in Republican hands as a result of the 2016 elections. The voters spoke loud and clear. During this year’s mid-term elections, there is no opportunity for the equivalent of a nationwide referendum on the Supreme Court issue. Since only one third of the Senate membership is up for election during each election cycle, only the voters in the minority of states where such elections will be held this year will have the opportunity to make their voices heard this year on how the senators they elect should deal with President Trump’s Supreme Court nominee.
As the Hill reported with regard to the 2016 general election, “About 139 million Americans, or 60.2 percent of the voting-eligible population, cast a ballot in November’s elections, according to data compiled by the U.S. Elections Project.” According to data compiled by the U.S. Census Bureau, the percentage of the voting-eligible population voting in congressional elections in the last mid-term election cycle in 2014 was 41.9 percent, or 92,251,000 reported voters.
The comparative numbers speak for themselves. “Since 1978, voting rates have been consistently higher in presidential election years than in congressional election years,” according to the Census Bureau report. “In 2014, the overall voting rate was the lowest for a congressional election since the CPS [Current Population Survey] first asked about voting and citizenship status in 1978. At 41.9 percent, the 2014 turnout rate was 3.6 percentage points lower than in 2010 and 5.9 percentage points lower than in 2006.”
Even if there is a somewhat higher voter turn-out this year than in 2014, it is highly unlikely to exceed 50 percent. The last time that happened was in 1982. It is unreasonable, to say the least, for Democrats to expect that the duly elected president, in the middle of his first term, defer to a minority of the voting-eligible population in a non-presidential election cycle before proceeding with his constitutional duty to nominate a replacement for Justice Kennedy. Then again, using reason and logic to make their arguments is not the Democratic politicians’ or their base’s strong suit.
"The Senate at its best, in my view, does involve herding cats," Senator McConnell said back in 2014, not long before he assumed his position as Majority Leader. "I mean, I've got everybody from Susan Collins [a moderate Republican from Maine] to Ted Cruz and various places in between. It's a diverse conference." Senator McConnell will need to do everything in his power to keep his "diverse" caucus together to prevail in one of the most momentous battles of our time.