The most consequential battle of the Donald Trump era begins Monday night when the President – never one to forego a primetime spectacle – announces his choice for the U.S. Supreme Court.
What follows the 9 p.m. televised event will be a conflict for the ages – quite literally so, for the decisions of the the American high court have implications for generations. In this battle, Mr. Trump and most of his Republican allies have the advantage. The fate of the President’s nominee in the confirmation vote later this year, however, depends on whether Mr. Trump has all, or merely most, of his fellow Republicans in his corner, and whether some Democrats, wary of their own survival in the November midterm elections, defect and support the Trump nominee.
No one, perhaps even Mr. Trump himself, knows for sure who he will choose – when the President made his first nominee in 2017, one of the two finalists hadn’t been alerted until hours before the announcement – but political professionals and legal experts believe this justice, if confirmed, will likely change the court fundamentally. Should Mr. Trump choose a conservative judge, as is likely, current policies and practices could be potentially eroded, if not actually overturned, by repeated 5-4 votes. Among the matters that could be affected are legal abortion, same-sex marriage, voting rights and even the Obamacare health scheme.
Decisions on these and other hot topics of the Trump years – the North American free-trade agreement and climate change – are reversible by a future presidential administration, perhaps by a moderate Republican White House or, almost certainly, a Democratic administration. But Supreme Court rulings generally establish a base of precedent that future jurists respect and rarely challenge.
Stare decisis, or “to stand by things decided,” is a legal doctrine by which the Court typically proceeds. That notion is also an important element of the Capitol Hill conflict that will begin to take shape Monday evening. With a tiny Republican majority, the Trump nominee will be able to win confirmation if, in brutal hearings before the Senate Judiciary Committee, he or she wins over two on-the-fence Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine. Embracing the stare decisis thesis could help, by signalling to Ms. Murkowski and Ms. Collins that the nominee would be unlikely to overturn the 1973 Roe v. Wade case that established abortion rights.
The final destiny of the Trump nominee may not depend solely on Republicans. In the President’s previous nomination, of Neil Gorsuch, three Democrats defected to support the White House choice.
That vote had less at stake. The Gorsuch nomination replaced a conservative, Antonin Scalia, with another conservative, and thus did not alter the precarious balance in the chamber. In this case, the Trump nominee will replace Anthony Kennedy, widely regarded as a “swing” vote: Justice Kennedy occasionally drifted left to side with the court’s liberals even as his instincts leaned slightly to the right. The new nominee will almost certainly change the court’s ideological balance, making the conservative Chief Justice, John Roberts, the ideological centre of the court as well as its public face.
Moreover, this vote will likely come on the eve of the midterm congressional elections. Several Democratic senators representing states that Mr. Trump carried in the 2016 presidential election are in difficult races, and thus face a difficult choice. Some may enhance their re-election prospects by voting for the Trump nominee.
Among the 10 Democratic senators facing voters in Trump states, three will confront especially difficult decisions: Heidi Heitkamp of North Dakota (which Mr. Trump carried with 63 per cent of the vote), Joe Manchin III of West Virginia (69 per cent) and Joe Donnelly of Indiana, home state of Vice-President Mike Pence (57 per cent). All three voted for Mr. Gorsuch.
These and other Democrats must now make this fateful, fearful decision: Is it better to preserve the political prospects of Democrats in the November mid-term elections and win back the Senate, or is it better to oppose a Trump nominee who will rule on cases for decades and hope for the best in their re-election battles?
The Democrats’ dilemma is all the more profound because of the party’s own decisions in the Barack Obama years, when, as the majority in the Senate, they began to change the arcane rules governing the chamber’s proceedings. As a result, the Republicans were later able to block Mr. Obama’s nomination of Merrick Garland after Mr. Scalia died in 2016, and can now proceed with a vote on the Trump nominee with only 50 votes in hand rather than 60. Thus the Democrats now reap what they sowed, and are at an enormous disadvantage as this vital vote approaches. And so, the Republicans now reap what the Democrats sowed.
David Shribman