An enormous amount of digital ink has been spilled in the last week or so about the coming Supreme Court vacancy and who might fill it and how that will play out. And these are truly momentous questions involving nuances of political strategy that could change the balance of the Senate political make-up. In other words, really hot stuff and absolutely chock full of fat-soluble vitamins.
But let’s jump the gun and talk about some really exciting things. Let’s assume for the sake of argument that the Senate manages to keep their act together and approve an actual conservative replacement for Anthony Kennedy. And let’s further assume for the sake of argument that John Roberts isn’t the Manchurian Justice that he seemed to be during the Obamacare deliberation. Then, what are the possible constitutional questions that could allow the new conservative majority to show its quality? Let’s make a list.
- I think the least likely early result of the new majority would be a test of Roe v. Wade. This is the thermonuclear case and I believe it will be a while before SCOTUS tackles something so controversial. After all, energizing the female vote against Republicans during the beginning of a conservative court majority would threaten the ability of a very narrow Senate majority right before the mid-terms. So I think this will wait at least a year or more.
- I think the most likely early test of this new majority will be a revisiting of the gay marriage vs. religious freedom question. And here is where I think that the Court will score an easy victory. I would be shocked if the Court does not hand a complete victory to religious tradespeople who object to being forced to participate in homosexual weddings. In my estimation this will be a great morale booster for conservatives and a well-deserved rebuke for the brown shirts in the LGBTQ
- Removing the Constitutional mandate for gay marriage would be a very bold move. Seeing that this would directly attack the precedent set by Anthony Kennedy just a few years ago it would represent a refutation of the narrative that has been developing in the Courts for the last twenty five years. But I think it would be the smart thing to do. Unlike Roe v. Wade, the shortness of time that has passed since the precedent was set limits the disruption caused by allowing the individual states to pass their own laws on either side of this issue. The Federal government could even restore the Defense of Marriage Act if it was politically expedient. And there is a real grass roots appeal to allow states that don’t favor the homosexual life style to have their say.
- Questions about the Constitutionality of Affirmative Action should be front and center in this Court. Even past verdicts by the Supreme Court when more liberal justices were represented recognized the contradictory nature of a clearly discriminatory practice sanctioned by the United States Government. It is long past the point where reverse discrimination makes even bad sense. And the way the Left has used it to weaponize identity politics against the white population needs to be shut down before it does anymore harm to the unity of the country.
- The constitutionality of the Patriot Act and other post 9-11 security over-reaches need to be reconsidered. The recent actions by the FBI and the other intelligence gathering agencies highlights the runaway nature of these intrusions on privacy and an originalist interpretation will go a long way toward re-evaluating the current imbalance favoring law enforcement over due process.
- And a final major item that could be adjudicated is the Constitutional protection for homosexuality. That was another constitutional protection discovered by Justice Kennedy. Here is another social question that used to be a state matter until the Supreme Court overstepped.
So, this merely my speculation. What do you think? What’s your logic? Leave a vote.
Is John McCain alive or dead? If alive, can he vote? Which way would he vote? After all he does love to spoil things. Assuming he will not be a factor, is Susan Collins the weak link? If she is, can she be persuaded? Is she up for re-election? What other republican votes are question marks? Could Manchin from West Virginia be convinced to vote against his party? If we don’t have the votes how likely is it that the mid-terms will increase the Republican Senate Majority? Should we try now and then after the mid-terms?
These are a few of the question that would need to be answered before trying to figure out if and/or when a conservative justice could get through the Senate.
And the other big question is whether Roberts is a ringer. Does he need to be outvoted too? If that’s the case we’ll need Ginsberg to go too.
So, as with all things Washingtonian, there are wheels within wheels and waiting is an integral part of the game. But so far Trump has a pretty good track record of getting the luck. If he gets a good man in then we can hope to know the answer to some of the Roberts questions pretty quickly. And if Roberts does turn out to be a ringer that’ll be just one more reason to distrust all things Bush and celebrate dodging the JEB! bullet almost as much as the Hillary one.
So, my guess, McConnell will spend a little time doing his math and making sure he completely understands the dynamic. Now that he and President Trump have normalized their relationship I expect they’ll coordinate carefully on the when and the how. They may spring it pretty quickly when it’s time and not give the Media or the Dems a lot of time to screech. McConnell indicated the vote would be in the fall. Maybe that’s a ruse. Maybe they’ll surprise everyone and do it before Labor Day. I’m not an expert on the machinery of the Senate so I don’t know how likely that is. My guess is McCain may be an important piece of the puzzle. His wife is touted to be in line for the job when he dies. How this affects the vote is anybody’s guess but my bet is that she’s a lib. For that reason, they may not wait for her to be seated.
Okay, so that’s the horse race. Now, why is this so damn important? Well, because if Roberts isn’t a ringer and we get another Gorsuch or Alito then we will have the first conservative Supreme Court since before I was born. In fact, we haven’t had a truly conservative Supreme Court in over a hundred years. Can you imagine if SCOTUS decides that all the Constitutional mandates that the activists judges have discovered over the last fifty years (abortion, gay rights, gay marriage, affirmative action, federal encroachment on States’ Rights, assaults on the First and Second Amendments) are not? And instead throws these decisions back to the states to decide? That would be a revolution. It would mean that instead of one homogeneous culture there would be several. And that might be the beginning of a great unraveling. Or it might be the occasion for a rethinking of many policies that were thrust onto the people from above by an elite that thought it was the best and the brightest and therefore ought to prevail against the will of the people. In places like Texas, Utah and the Old South more conservative populations would be allowed to live the way they wanted without the federal government harassing and scolding them for their values. To my mind that would come very close to restoring America to its essential virtue, a place where you are free to live the way you want without the government constantly interfering. And that sounds more or less like heaven to me. So, here’s hoping the math works out. Let’s hope the final sum is a positive. I’m tired of negative.
“Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual. …To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”
We’re gonna miss Scalia. He was solid.
For many people on the right wing, Supreme Court appointments are the highest priority for the Trump to-do list. Gorsuch was the first act of that play. But what they really want is a clear majority of socially conservative justices willing to act on issues where unconstitutional policy has been imposed on the country. High on that list are the moral outrages of abortion and so-called homosexual marriage. But at the very top of the list of unconstitutional policies that damage American life is affirmative action. Here are a laundry list of protected classes ranging from half the population (women) to all non-white populations, to homosexuals and other deviants who only share one thing in common, they are not normal white men. These groups are provided the coercive force of the federal and/or state government to gain preference in employment, housing and education. And lately the sexual orientation and gender identity protected statuses are being used to dictate everything from who can be a boy scout to who can use a bathroom reserved for women. But the truth of these laws is that they should really be called what they are. They should be called Legalized Discrimination against Normal White Men. Because this is the only group that is systematically discriminated against by every one of these policies. An attempt to do this against any other group would be challenged legally and morally condemned. But normal white men are undefended and in fact assumed to be unworthy of receiving the universal fairness that the left demands for every other group.
I am not an expert at how the Court system works. What I think happens is some lower Court adjudicates some case that contradicts a Federal law. If the lower court agrees with the existing law and finds against a plaintiff or defendant on the other side of this precedent then he has the right to appeal to a higher level of the federal court structure. And if this continues, eventually it can reach the Supreme Court. The decision of the Supreme Court is considered final and can even overturn a federal law if the Supreme Court finds it unconstitutional as happened with the Defense of Marriage Act. That was Justice Kennedy’s handiwork.
How I would see affirmative action overturned will be when some white man is discriminated against because of one of these policies and he gets his day in court and a majority of Supreme Court Justices says enough is enough. Once the whole range of affirmative action policies are looked at it will be easy to justify their complete dismantling based on the very question of fairness that the left is always trumpeting. The only question I’m not sure about is whether the Court will decide to phase out these policies or just end them outright. I can foresee an enormous legal and bureaucratic endeavor to strip out all the affirmative action policies scattered throughout the federal and state statutes and government policy documents.
But none of this can happen until one of the sitting left-leaning Supreme Court Justices retires (or passes away) and there exists a conservative President and Senate to put a conservative appointee on the Supreme Court bench. I have to confess this is one of the things I wait for most impatiently. And as much as I’d like to see Kennedy go, I’d prefer it was Bader-Ginsburg or Breyer. Kennedy’s bad but he is alright on the non-social issues. I can wait for him to go next.