great ! Donald Trump's Supreme Court Picks Could Ignite a War With the Left
Just weeks ago, buoyed by favorable polls and a sense of her campaign's momentum, progressive legal activists dared to embrace the possible: That President Hillary Clinton, presented with at least one and perhaps as many as four Supreme Court vacancies, would smash the three-decade-long conservative majority, pushing the court firmly to the left.
Then, President-elect Donald J. Trump happened. The surprise Republican tsunami that swept a celebrity billionaire to power and gave the GOP control of the Senate – along with the Supreme Court nomination process – swamped liberals' hopes of a high court recalibration in their favor.
"Trump's decisive, map-realigning victory, was in large part won by his focus on the Supreme Court issue," Ken Blackwell, a former Ohio state treasurer, conservative thought leader and Trump insider, told USA Today the day after the election. "The American people showed their rejection and disdain for adding more liberals to the court by voting to re-elect a Republican Senate," which is responsible for Supreme Court confirmations.
Progressives, however, insist they've got Republicans right where they want them: emboldened by Trump and out of step with most Americans.
Far from despondent or in disarray, they say, the left is organized, energized, raking in contributions and spoiling for a Supreme Court nomination fight. They're also itching to deliver payback for Republicans' unprecedented decision to stall the nomination of Judge Merrick Garland, the center-left candidate President Barack Obama chose to replace the late Justice Antonin Scalia.
"We're preparing for a big fight and we're confident that we'll have the resources we'll need to wage it," says Drew Courtney, communications director for People for the American Way, a liberal organization. "In the eleven years I've been at People For the American Way, I've never seen our activists as energized or engaged."
Agreed, says Nan Aaronson, director of Alliance for Justice, a liberal judicial advocacy group: "I think that the fear gripping the country is that people see a [Trump] Supreme Court nominee as taking us in an even more radical direction. The fact that people are outraged and terrified will make it easy for us to mobilize the country."
"This could be the biggest fight we have ever had," she says.
Yet with full control of two of the three levers of government, Republican activists show no signs of backing down – and that they intend to hold Trump to his campaign promise of nominating an ideological replacement for Scalia, a rock-ribbed conservative and flame-throwing defender of the movement's principles.
"Incoming Senate Minority Leader Chuck Schumer, a New York Democrat, has already threatened to filibuster any nominees if they're not 'mainstream,'" Ilya Schapiro, a judicial analyst wrote in The Federalist, a conservative online magazine. "Who knows if any of the stellar group of geographically and educationally diverse jurists (plus Utah Senator Mike Lee) on President-elect Donald Trump's list pass Schumer's test, but both Trump and [Senate Majority Leader Mitch] McConnell should ignore that posturing" and push ahead with a conservative nominee.
Betsy McCaughey, a senior fellow at the conservative London Center for Policy Research, expects the left to cave if push comes to shove.
"Will the Democrats' tough talk lead to anything? Unlikely," McCaughey wrote Tuesday in The New York Post. "Ten Senate Democrats in states Trump won are facing tough re-election races in 2018. Count on some of them to help push Trump's pick over the 60-vote threshold to defeat Democratic obstruction attempts."
But the stakes are high for Trump, a novice politician who hasn't faced pressure of this intensity since defeating Clinton in a bitter, hard-fought election.
Should the president-elect keep his promise and nominate Scalia's ideological twin, it's likely he'll trigger a scorched-earth confirmation battle between Democrats and Republicans, pitting the left's grassroots activism against the right's media and political power. If he bails on his promise to pick a staunch conservative, however, he'll alienate the broad range of conservatives he'll need to govern effectively.
A conservative group dialed up even more pressure on Trump, measuring the "Scalia-ness" of 21 jurists the president-elect identified as possible nominees during the campaign. Using rulings and public statements, the study, produced by a group of legal scholars, ranks the candidates against Supreme Court decisions and opinions that defined the late justice's legal philosophy.
At the same time, The Judicial Crisis Network, another conservative organization, is spending more than half a million dollars for TV and digital ads to remind the president-elect – and the millions who voted for him – about his Supreme Court promises, using his own words from the last presidential debate with Clinton: "It's just so imperative that we have the right justices."
Meanwhile, several justices in the twilight of their careers: Liberal Justice Ruth Bader Ginsburg, who survived pancreatic cancer, is 83, fellow liberal Justice Stephen G. Breyer is 78, Justice Anthony Kennedy, a swing vote, is 80 and Justice Clarence Thomas, a conservative, is 68 but has talked of retiring. That makes it likely Trump will have at least one and possibly four opportunities to remake the court before he leaves office.
Analysts predict those circumstances, along with McConnell's disciplined Senate majority, Senate Democrats' weak hand and McConnell's power to block them from filibustering an objectionable nominee, mean the White House could lock in an implacable 7-2 conservative advantage for decades, perhaps before the end of Trump's first term.
Despite some allies suggesting they'd be better off going to the mat with Republicans over an all-but-certain, near-future vacancy in the court's liberal bloc, progressive organizations say Republicans should be on notice: They're going to fight for Scalia's seat on Day One of the Trump administration, and they insist public opinion – in the form of Clinton's popular-vote lead over Trump, currently at 2.3 million and counting – is on their side.
"There's no mandate for a radical turn to the right" for the Supreme Court, says Caroline Fredrickson, president of the left-leaning American Constitution Society. "In fact the only mandate there is is for the president to choose [a nominee] who reflects mainstream views of our Constitution, and we are going to fight like hell to make sure that's the only person he nominates and the only person who gets confirmed."
Given the list of jurists Trump has already proposed, and the pressure he's under choose from them, means that fight is not only likely but imminent, says Alliance for Justice's Aron.
"Every word and action of Donald Trump since the election is a warning sign that he will name the most radical candidate he will find," Aron says. "I say that because I've seen the list of 21 [judges] who he's indicated he'll choose from and almost every individual on that list sees law not as an instrument of justice but as a weapon to protect the wealthy and powerful."
"This country has a strong belief that certain pillars of our case law should not be disturbed, including Roe v. Wade – that ship has sailed," Fredrickson says. "We also know that a majority of the country supported [Clinton]" even though Trump won the electoral college majority.
"Most Americans don't want to go backwards. Yes, there are certain constituencies that want to turn the clock back on abortion and LGBT rights," she says. "But the vast majority of Americans recognize and appreciate the progress that has been made and don't want to go back."
While most analysts believe abortion rights and gay marriage are safe under a 5-4 conservative majority, with Kennedy voting with the court's four liberals, Aron and Fredrickson believe a give-no-quarter war with conservatives over Scalia's seat could yield a positive result for liberals – a moderate and potential new swing vote, with Garland's star-crossed nomination the template for the new normal.
"If Trump nominates a candidate like Merrick Garland, who enjoyed Republican support when he was approved for the [Washington, D.C.] Court of Appeals, we and Americans will rally around that candidate," says Aron. "But there is nothing we have heard or seen from Donald Trump that indicates he would appoint anyone other than a far-right candidate who would turn the clock back on decades of progress in this country."
Instead, Fredrickson says, the president-elect – who pledged to unify the country and could use a goodwill gesture to the left – should find someone that could move the court to the center rather than appease the right.
"We understand that person isn't going to quite be where Merrick Garland was, but it should be the Merrick Garland of the Republican Party," she says. Do otherwise, Fredrickson adds, "and Americans will come together like never before and mount a campaign of opposition" that would rock the new, untested administration.
"The hard right thinks they own the court – that when Scalia died, they put a plaque on that seat to reserve it forever," Fredrickson says. "Last time I checked, it doesn't work that way. It's not the progressives who are declaring war. The war was declared on the right" when it unilaterally denied Obama his right to choose a replacement, and refusing Garland a confirmation vote.
"They're assuming that we're all just going to put our tails between our legs and slink into the corner," she adds. "Not happening."
Fredrickson, Aron and others say the opposition could mean everything from ad campaigns on TV and online to urging voters to jam Senate and White House phone lines with objections to the nominee. All that can be avoided, Aron says, if Trump and the GOP choose wisely.
"It all depends on them," she says. "If they select a candidate who would turn the clock back on our rights and liberties they are asking for a huge fight. [But if] the nominee has a healthy respect for our cherished constitutional rights, that person will easily get through. They hold the cards."
Just weeks ago, buoyed by favorable polls and a sense of her campaign's momentum, progressive legal activists dared to embrace the possible: That President Hillary Clinton, presented with at least one and perhaps as many as four Supreme Court vacancies, would smash the three-decade-long conservative majority, pushing the court firmly to the left.
Then, President-elect Donald J. Trump happened. The surprise Republican tsunami that swept a celebrity billionaire to power and gave the GOP control of the Senate – along with the Supreme Court nomination process – swamped liberals' hopes of a high court recalibration in their favor.
"Trump's decisive, map-realigning victory, was in large part won by his focus on the Supreme Court issue," Ken Blackwell, a former Ohio state treasurer, conservative thought leader and Trump insider, told USA Today the day after the election. "The American people showed their rejection and disdain for adding more liberals to the court by voting to re-elect a Republican Senate," which is responsible for Supreme Court confirmations.
Progressives, however, insist they've got Republicans right where they want them: emboldened by Trump and out of step with most Americans.
Far from despondent or in disarray, they say, the left is organized, energized, raking in contributions and spoiling for a Supreme Court nomination fight. They're also itching to deliver payback for Republicans' unprecedented decision to stall the nomination of Judge Merrick Garland, the center-left candidate President Barack Obama chose to replace the late Justice Antonin Scalia.
"We're preparing for a big fight and we're confident that we'll have the resources we'll need to wage it," says Drew Courtney, communications director for People for the American Way, a liberal organization. "In the eleven years I've been at People For the American Way, I've never seen our activists as energized or engaged."
Agreed, says Nan Aaronson, director of Alliance for Justice, a liberal judicial advocacy group: "I think that the fear gripping the country is that people see a [Trump] Supreme Court nominee as taking us in an even more radical direction. The fact that people are outraged and terrified will make it easy for us to mobilize the country."
"This could be the biggest fight we have ever had," she says.
Yet with full control of two of the three levers of government, Republican activists show no signs of backing down – and that they intend to hold Trump to his campaign promise of nominating an ideological replacement for Scalia, a rock-ribbed conservative and flame-throwing defender of the movement's principles.
"Incoming Senate Minority Leader Chuck Schumer, a New York Democrat, has already threatened to filibuster any nominees if they're not 'mainstream,'" Ilya Schapiro, a judicial analyst wrote in The Federalist, a conservative online magazine. "Who knows if any of the stellar group of geographically and educationally diverse jurists (plus Utah Senator Mike Lee) on President-elect Donald Trump's list pass Schumer's test, but both Trump and [Senate Majority Leader Mitch] McConnell should ignore that posturing" and push ahead with a conservative nominee.
Betsy McCaughey, a senior fellow at the conservative London Center for Policy Research, expects the left to cave if push comes to shove.
"Will the Democrats' tough talk lead to anything? Unlikely," McCaughey wrote Tuesday in The New York Post. "Ten Senate Democrats in states Trump won are facing tough re-election races in 2018. Count on some of them to help push Trump's pick over the 60-vote threshold to defeat Democratic obstruction attempts."
But the stakes are high for Trump, a novice politician who hasn't faced pressure of this intensity since defeating Clinton in a bitter, hard-fought election.
Should the president-elect keep his promise and nominate Scalia's ideological twin, it's likely he'll trigger a scorched-earth confirmation battle between Democrats and Republicans, pitting the left's grassroots activism against the right's media and political power. If he bails on his promise to pick a staunch conservative, however, he'll alienate the broad range of conservatives he'll need to govern effectively.
A conservative group dialed up even more pressure on Trump, measuring the "Scalia-ness" of 21 jurists the president-elect identified as possible nominees during the campaign. Using rulings and public statements, the study, produced by a group of legal scholars, ranks the candidates against Supreme Court decisions and opinions that defined the late justice's legal philosophy.
At the same time, The Judicial Crisis Network, another conservative organization, is spending more than half a million dollars for TV and digital ads to remind the president-elect – and the millions who voted for him – about his Supreme Court promises, using his own words from the last presidential debate with Clinton: "It's just so imperative that we have the right justices."
Meanwhile, several justices in the twilight of their careers: Liberal Justice Ruth Bader Ginsburg, who survived pancreatic cancer, is 83, fellow liberal Justice Stephen G. Breyer is 78, Justice Anthony Kennedy, a swing vote, is 80 and Justice Clarence Thomas, a conservative, is 68 but has talked of retiring. That makes it likely Trump will have at least one and possibly four opportunities to remake the court before he leaves office.
Analysts predict those circumstances, along with McConnell's disciplined Senate majority, Senate Democrats' weak hand and McConnell's power to block them from filibustering an objectionable nominee, mean the White House could lock in an implacable 7-2 conservative advantage for decades, perhaps before the end of Trump's first term.
Despite some allies suggesting they'd be better off going to the mat with Republicans over an all-but-certain, near-future vacancy in the court's liberal bloc, progressive organizations say Republicans should be on notice: They're going to fight for Scalia's seat on Day One of the Trump administration, and they insist public opinion – in the form of Clinton's popular-vote lead over Trump, currently at 2.3 million and counting – is on their side.
"There's no mandate for a radical turn to the right" for the Supreme Court, says Caroline Fredrickson, president of the left-leaning American Constitution Society. "In fact the only mandate there is is for the president to choose [a nominee] who reflects mainstream views of our Constitution, and we are going to fight like hell to make sure that's the only person he nominates and the only person who gets confirmed."
Given the list of jurists Trump has already proposed, and the pressure he's under choose from them, means that fight is not only likely but imminent, says Alliance for Justice's Aron.
"Every word and action of Donald Trump since the election is a warning sign that he will name the most radical candidate he will find," Aron says. "I say that because I've seen the list of 21 [judges] who he's indicated he'll choose from and almost every individual on that list sees law not as an instrument of justice but as a weapon to protect the wealthy and powerful."
"This country has a strong belief that certain pillars of our case law should not be disturbed, including Roe v. Wade – that ship has sailed," Fredrickson says. "We also know that a majority of the country supported [Clinton]" even though Trump won the electoral college majority.
"Most Americans don't want to go backwards. Yes, there are certain constituencies that want to turn the clock back on abortion and LGBT rights," she says. "But the vast majority of Americans recognize and appreciate the progress that has been made and don't want to go back."
While most analysts believe abortion rights and gay marriage are safe under a 5-4 conservative majority, with Kennedy voting with the court's four liberals, Aron and Fredrickson believe a give-no-quarter war with conservatives over Scalia's seat could yield a positive result for liberals – a moderate and potential new swing vote, with Garland's star-crossed nomination the template for the new normal.
"If Trump nominates a candidate like Merrick Garland, who enjoyed Republican support when he was approved for the [Washington, D.C.] Court of Appeals, we and Americans will rally around that candidate," says Aron. "But there is nothing we have heard or seen from Donald Trump that indicates he would appoint anyone other than a far-right candidate who would turn the clock back on decades of progress in this country."
Instead, Fredrickson says, the president-elect – who pledged to unify the country and could use a goodwill gesture to the left – should find someone that could move the court to the center rather than appease the right.
"We understand that person isn't going to quite be where Merrick Garland was, but it should be the Merrick Garland of the Republican Party," she says. Do otherwise, Fredrickson adds, "and Americans will come together like never before and mount a campaign of opposition" that would rock the new, untested administration.
"The hard right thinks they own the court – that when Scalia died, they put a plaque on that seat to reserve it forever," Fredrickson says. "Last time I checked, it doesn't work that way. It's not the progressives who are declaring war. The war was declared on the right" when it unilaterally denied Obama his right to choose a replacement, and refusing Garland a confirmation vote.
"They're assuming that we're all just going to put our tails between our legs and slink into the corner," she adds. "Not happening."
Fredrickson, Aron and others say the opposition could mean everything from ad campaigns on TV and online to urging voters to jam Senate and White House phone lines with objections to the nominee. All that can be avoided, Aron says, if Trump and the GOP choose wisely.
"It all depends on them," she says. "If they select a candidate who would turn the clock back on our rights and liberties they are asking for a huge fight. [But if] the nominee has a healthy respect for our cherished constitutional rights, that person will easily get through. They hold the cards."
