I know that many of us, myself included, have been fixated on kicking Donald J. Trump out of the White House and possibly into a jail cell. In addition to being a clear and present danger to this country and our democracy, he irritates us every day his bazaar antics and constantly reminds us how unhinged he really is. Important as that is, even if Trump were an ordinary run of mill Republican, this would still be a high stakes election for all of us.
We find ourselves in this situation because Mitch McConnell robbed President Obama of the opportunity of appointing his third Supreme Court Justice to replace Anthony Scalia, one of the court’s most conservative Justices. The confirmation of Obama’s nominee, Merrick Garland, would have insured a liberal majority on the court for many years to come. Instead, because of McConnell’s disreputable tactics, Trump was able to successfully appoint Neil Gorsuch, another very conservative judge, to replace Scalia.
Trump the was then able to replace Anthony Kennedy, a Republican appointee who was often the swing vote who who sometimes sided with the liberals in the court’s 5-4 decisions, with another stanch conservative, the controversial Brett Kavanaugh. This second appointment should have given the conservative a reliable 5 to 4 advantage on the court. However, another Republican appointee, Chief Justice John Roberts, appears to have modified his conservative positions of late and, at least to some extent, seems to be taking Kennedy’s place as the court’s new swing vote.
However, Democrats can take no solace in this Roberts apparent conversion when looking towards the future. If Trump were to win the 2020 election it is likely that he could nominate at least one and perhaps even two or more additional Supreme Court Justices during his second term. Any new Trump appointment would ensure that the court proceeds with an extremely solid conservative majority for a generation. And it is certainly not clear that we will be able to depend on the Senate confirmation process to reject Trump’s most unacceptable nominees.
Currently there are 53 Republicans and 47 Democrats and independents who caucus with the Democrats in the Senate so the Democrats would need only to flip only 4 seats to take absolute control of chamber regardless which party wins the presidency. With 22 of the 34 Senate seats up for reelection in 2020 being held by Republican incumbents, it would seem that the Democrats should be able to pull that off. However, the situation is more complicated than it appears at first glance.
It is much too early to know how the 2020 Senate races will shape up, but 18 of the 22 Republican seats up for reelection are in states which normally vote for Republican by substantial margins. Normally one would expect those 18 seats to remain in Republican hands. Again based on the state’s normal voting habits the Democrats are also likely to lose Doug Jones’ Alabama seat to the Republican nominee. Conversely only 7 of the 12 Democratic Senate seats are considered “safe” by that measure while of the 8 remaining seats which are “up for grabs”, 5 are currently held by Democrats. The situation may change going forward, but as of now political experts believe that the odds are against the Democrats gaining control of the Senate, especially if Trump were to win meaning that his Vice President would cast the deciding vote in case of a tie.
If Trump elected for a second term, and the Republicans retain control of the Senate, whatever liberal/conservative balance the Supreme court may achieved thus far have would be deep jeopardy. The average retirement age of the last 11 Justices to leave the court was 80 years old. Currently the two oldest Supreme Court Justices are both liberals. Ruth Bader Ginsburg is 86 and Stephen Breyer will be 81 August 15th of this year. Clarence Thomas, the oldest conservative on the Supreme Court bench will be 71 June 23rd and claims that he wants to serve at least another 10 years.
Ginsburg sometimes appears to be indestructible, but she is perhaps the most at risk of being forced into retirement due health reasons during the term of the next president. She is a three time cancer survivor; she recently had two malignant tumors removed from her lungs. Her lung cancer was detected while she was being treated for three broken ribs after falling in her office. She also recovered from colorectal cancer in 1999. Ten years later she was fortunate that her normally deadly pancreatic cancer was detected early. In 2014 she also had a stent inserted into one of her coronary arteries to deal with a blockage.
Stephen Breyer, 81, has served as a Supreme Court Justice for 25 years after being appointed in 1994 by Bill Clinton. He appears to be in good health but keep in mind that unlike presidents whose yearly physical exams draw the attention of the nation’s media, the health problems of Supreme Court Justices are usually kept under wraps unless they cause a Justice to be hospitalized, especially while the court is in session. Breyer may have health problems that we don’t know about or may be ready to retire have a long tenure on the bench which stretches back 39 years including his service on the 1st Circuit Court of Appeals.
We do know that Sonia Sotomayor, another liberal on the court who will be 65 June 25th was hospitalized last year after she fainted on the job due to low blood sugar, the result of her type 1 diabetes which she has dealt with since she was a child. She is normally able to keep her illness well under control, but diabetes can ultimately have many adverse effects.
Needless to say that if Trump is reelected the retirement or death of any of the four liberal Justices on the Supreme Court would be disastrous for progressive causes for a generation, perhaps for much longer once precedents are set. The Supreme Court is capable of making decisions which can affect the everyday lives of all Americans including our freedoms, our privacy, our work lives, our politics, and even our authority over our own bodies.
Even if we were able to set aside our abhorrence of the despicable man who currently occupies the White House (an impossible task at best), the good possibility that he may be able to select the next Supreme Court Justice replacement during a second term should provide all of the incentive we need to do everything in our power to insure that he is not reelected.
Cajun 6/6/2019