Jurisprudence

The Only Thing That Might Stop Trump From Replacing Kennedy With a Scalia Clone

U.S. Supreme Court Associate Justice Anthony Kennedy arrives for the funeral of fellow Associate Justice Antonin Scalia in 2016.
U.S. Supreme Court Associate Justice Anthony Kennedy arrives for the funeral of fellow Associate Justice Antonin Scalia in 2016.
Chip Somodevilla/Getty Images

Buckle up, folks. If you did not like what the Supreme Court has done in the last few weeks on voting rights, public-sector unions, and Trump’s travel ban, things are going to get a whole lot worse now that Justice Anthony Kennedy is retiring and with conservative Chief Justice John Roberts about to become the new swing justice. There’s precious little Democrats can do, at least in the short term, either to stop the nomination of another clone of Justice Antonin Scalia, or to stop the political benefit President Donald Trump is likely to get from such an appointment. Fixing the Supreme Court will be a long-term project.

In short order, I expect President Trump to take the safe route and nominate a stellar Scalia clone. My personal expectation is that Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit is a likely pick. Trump has reportedly already said he intends to select the next justice from a previously circulated list of Federalist Society–approved judges. Following the playbook used for Justice Neil Gorsuch’s confirmation, the new nominee will be a very smart (likely white male) judge with impeccable credentials who can get up in front of the Senate Judiciary Committee and commit to absolutely nothing in terms of his future rulings.

Democrats have no cards to play here. You may remember that former Senate Majority Leader Harry Reid had killed the filibuster for all executive and judicial nominees except Supreme Court justices during Obama’s term. Then during the Gorsuch nomination fight, current Majority Leader Mitch McConnell extended that to Supreme Court nominees. This means it takes only a majority of votes to get a nominee through, and Republicans have such a 51–49 majority in the Senate.

This means even if all the Democrats voted no, there’s no filibuster and no stopping the nominee with their votes. And if you think that senators like Jeff Flake would buck Trump on a nominee like Kavanaugh, forget it. They may disagree with Trump about a lot of things, but not about hard-right judicial nominees.

The only political hope here is for massive street protests, like we saw with the initial Trump travel ban to try to convince senators like Susan Collins of Maine or Lisa Murkowski of Alaska to vote no. It’s a long shot because we’ve seen these senators fold time and again. But it is worth trying.

The problem is that the Supreme Court issue has been a tough one to get people to rally around. Before the election, I wrote a long piece at Talking Points Memo about how the court’s makeup is the most important civil rights issue of our time. On everything from abortion to same-sex marriage to immigration, labor unions, and voting, the court touches all aspects of our lives. But it does so in ways that are opaque to the average person. A political movement needs concrete indications of a problem, and it did not materialize before the 2016 election that this upcoming crisis was obvious. Maybe the court’s opinions this week on the travel ban and labor unions can provide some impetus.

What’s worse is that not only is political action unlikely to stop a nomination, that nominee could be on the court for generations. Arch-conservative Justice Clarence Thomas joined the Court at 43 and just turned 70. Democrats may have to turn to more radical measures—like adding more justices to the court, something some have already proposed—when they come back into power in order to make up for the Merrick Garland nomination that was blockaded by McConnell in 2016.

The nomination will also offer a short-run advantage for Republicans. I expect a Trump Bump in the midterms when evangelicals come out to vote excited about the next Scalia that Trump and McConnell have delivered to them.

Eventually more people will realize how awful the court is going to be. When abortion becomes all but impossible in many states, when civil rights and voting rights can be curtailed easily, and the right to discriminate against LGBT folks becomes part of the Supreme Court’s set of cases, people will be angry and come out to vote.

But we know that Roberts is a patient and savvy man, and he likes to write opinions that look minimal but do maximum damage. With him in control of the court, he can do a lot of damage that looks like only incremental change. It may be 2020 or later before people start seeing how terrible things really can become, like the frog that slowly comes to a boil.

One final piece of gloom. In my recent book on Scalia’s legacy, I suggested that the pugnacious Scalia will be larger in death than in life. That’s because Gorsuch and the other future justices likely to be picked by Trump—via the influence of the Federalist Society—have pledged allegiance to the hard-right Scalia model. It’s a model that not only curtails the rights many of us care about, but does so in a Trumpian way to delegitimize judges and lawyers with other views.

Thanks to Scalia’s legacy, we can expect more polarization on the court, and the kind of nasty exchanges we saw this week between Justice Samuel Alito on the one hand and Justices Sonia Sotomayor and Elena Kagan on the other.

It is not a pretty picture. And it will likely have to get much worse before it gets better.