“Come See About Me” - The Supreme Court Picks -- Sunday Political Brunch July 8, 2018


CHARLESTON, W.Va. -- On Monday night President Trump will announce his latest nominee for Associate Justice of the U.S. Supreme Court. As with his first nominee, Neil Gorsuch, the event will have all trappings of an episode of Trump's old TV show, "The Apprentice." And since were on a Supreme's theme, we're "borrowing" some of their popular song titles! Let's "brunch" on that this week.

"Forever Came Today" -- When he steps down at the end of this month, Justice Anthony Kennedy will have served over 30 years on the high court. Twenty-nine of those years occurred after President Ronald Reagan - who nominated Kennedy - left office. That's how important these picks can be. Kennedy also became the key swing vote on many of the Court's 5-4 decisions. My point is, whether Donald Trump serves one-term or two, his Supreme Court appointees could rule for decades.

"Stop in the Name of Love" -- Supreme Court nominations are the subject of hardball politics. Just check two failed nominees, Robert Bork and Merrick Garland. Garland was nominated by President Obama after the death of Justice Antonin Scalia in 2016. But since it was a presidential election year, the Republican-led Senate chose not to hold confirmation hearings until after the election, on the theory that the next president deserved to make the pick, not lame-duck Obama. Democrats were furious, but Republicans prevailed. Trump won and picked Gorsuch.

"The Happening" -- There's no subtlety on how this played out. Just look at the final two decisions of the Supreme Court in late June. Justices voted 5-4 to uphold President Trump's travel ban aimed at seven Muslin-majority countries. The Court also issued a 5-4 decision regarding union dues, which was a big blow to organized labor. In both cases, Gorsuch voted with the majority. Had Democratic nominee Merrick Garland been confirmed to the high court, the outcome of both cases would likely be the opposite. Wow!

"You Keep Me Hangin' On" -- Both parties are guilty of messing with high court nominations, and the impact of the above cases is evidence of that. Ronald Reagan had a relatively easy time with his first two nominees, Sandra Day O'Connor and Antonin Scalia, mostly because Republicans held the majority in the Senate. But in 1986, Republicans lost the Senate and Democrats took over. Bork, who was deeply involved in the Nixon White House, became a target after he was nominated. He was rejected by 58 Senators. Anthony Kennedy, a more centrist nominee, then got the nod and here we are 30 years later. There’s a lot of tit-for-tat!

“Run, Run, Run!” – Some Democrats have suggested the standard that applied in 2016, should apply in 2018 – that is, wait until after the November elections. Fat chance. Republicans are in danger of losing the Senate, so there is no way they will wait. On the contrary, we could see confirmation hearings in late July, with a possible confirmation vote before Labor Day, if Senate Majority leader Mitch McConnell (R-KY) keeps lawmakers at the Capitol during the August recess. My gut says the GOP will wait until September, but I predict the new Associate Justice will be on the bench for the Court’s traditional opening day on the first Monday in October.

“No Matter What Sign You Are” – As I so often state in this column, politics is as much about math as it is about ideology. Republicans control the Senate 51-49. They could lose one vote, but Vice President Mike Pence would come in and break the tie. But there is another factor. Senator John McCain (R-AZ) is at home being treated for terminal cancer. What if he can’t make it back to Washington, DC for the vote? That means the GOP, in theory, cannot afford to lose a single vote.

“Someday We'll Be Together” – Sen. Susan Collins (R-ME) has threatened to bolt if the nominee is hostile towards Roe v Wade, the decision legalizing abortion. Sen. Lisa Murkowski (R-AK) is another potential flip, if the pick is unfriendly toward certain health care reforms in the Affordable Care Act. Is the Trump pick dead in the water, if two Republican Senators bolt? Oddly, no. That’s because three members of the minority party are in fights for their political lives. Sen. Joe Manchin (D-WV), Sen. Heidi Heitkamp (D-ND) and Sen. Joe Donnelly (D-IN), all face tough reelection bids in bright red states. For example, all three voted to confirm Justice Neil Gorsuch. The pressure to “help” Trump from the other side of the aisle will be intense.

“I'll Try Something New” – A lot is at stake with this pick, and President Trump may get another. Associate Justice Ruth Bader Ginsberg is 85 and has health issues. Because of this, both sides are already raising millions to support and oppose the current opening. This may be the most expensive, most combative confirmation we’ve seen since Associate Justice Clarence Thomas in 1991.

“Nothing But Heartaches” – As mentioned, the two biggest agendas are whether abortion remains legal, and whether Obamacare stays intact. My political radar suggests the former will stand as “settled law,” but the latter could be toast. But these are not just legal issues, they are intensely political. Because of that, where people stand on the judicial nominee could have a big impact on who wins control of the House and Senate in November, and whether President Trump is viable for a second term. The stakes could not be higher.
What are your thoughts on the Supreme Court nomination process? Just click the comment button at www.MarkCurtisMedia.com.

Mark Curtis, Ed.D., is a nationally-known political reporter, analyst and author. He is Chief Political Reporter for the five Nexstar Media TV stations serving West Virginia and its five surrounding states and the District of Columbia.

© Mark Curtis Media, LLC

Photo courtesy: SupremeCourt.gov

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