MARK POPE: Supreme Court Wrangling [OPINION]
The Supreme Court battle – with plenty of “hard knocks” – has already begun as Anthony Kennedy recently announced that he will retire as a Supreme Court Associate Justice on July 31, 2018. President Trump will announce his nominee to replace Kennedy on Monday, July 9. The rhetoric and gamesmanship will be nasty as the U.S. Senate deliberates whether to approve Trump’s nominee, who most probably will be a strict constitutionalist.
Thanks to Senate Majority Leader Harry Reid, the Senate rule change to confirm Executive Branch nominations and federal judicial appointments means that only 51 votes are necessary to confirm such presidential nominations. The vote to confirm Trump’s Supreme Court nominee will surely be a close one in the Senate, despite Reid’s rule changes back in 2013. Let’s examine the tenure of Justice Kennedy, and the implications that losing him on the Supreme Court will have for the Court.
Justice Kennedy was nominated by Ronald Reagan in 1987. But Kennedy was not Reagan’s first choice to replace retiring Justice Lewis Powell. Reagan first nominated Robert Bork. After protracted Senate hearings for Bork, it became evident that the Democrat-dominated Senate (55 Democrats vs. 45 Republicans) would not confirm Bork, whose crass personality and strict adherence to conservative ideology in law and policy ultimately spelled Bork’s rejection. Reagan next nominated Douglas Ginsburg, but Ginsburg withdrew his nomination after he admitted in Senate hearings to using marijuana as a young adult. Kennedy, a more amicable candidate, and a staunch proponent of individual rights was subsequently nominated by Reagan. After in-depth scrutiny into Kennedy’s background, the Democrat-majority Senate confirmed Kennedy 97-0.
Kennedy was commonly called the “swing vote” on the Supreme Court. That moniker is partially accurate. Yes, Kennedy voted in favor of a woman’s free exercise of her right to an abortion under Roe v. Wade. He also voted to guarantee the right to same-sex marriage in the 5-4 Obergefell v. Hodges case. Once again, Kennedy was an avid proponent of individual rights. But Kennedy voted often to limit the overreach of the federal government. He was not “liberal” in the majority of his votes on the Supreme Court.
An impartial assessment of the current Supreme Court Justices’ votes, when designated as “liberal vs. conservative” issues, ranks the following Justices as voting conservative the majority of the time. The list is interesting.
*Samuel Alito (the most consistently conservative) @ 84%
*John Roberts – 82%
*Clarence Thomas – 80%
*Anthony Kennedy – 71%
The general public does not hear about the majority of Supreme Court decisions. They only hear about the “controversial” decisions. The Court, on average, takes on 130 cases per year. Eighty of those cases involve “oral arguments.” The other 50 cases are decided without oral arguments by plaintiffs. On average, 7,000 cases per year are appealed up to the Supreme Court.
President Trump is governing, to a large degree, as a true conservative. His nominee for Supreme Court Justice needs to be a solid conservative, who will focus on upholding the tenets written into the U.S. Constitution. Had Hillary Clinton become president, nominees for Supreme Court Justices would have been judges who “legislate from the bench.” The Constitution is not a “living, breathing document,” as liberals espouse. The Constitution is a solid foundation for individual liberty, with emphasis on limiting the powers of the federal government. Let the next Supreme Court Justice be one who agrees with this ideology, and the United States of America will surely stay on the road to “Making America Great Again.”