Anthony Kennedy

Chief Justice John Roberts To Become The New Balance On The Future Supreme Court?

Chief Justice John Roberts has been on the Court for 13 years now, and he is generally perceived as a conservative.

But he has surprised some conservatives, as when he kept ObamaCare (the Affordable Care Act) alive in 2012.

Also, Roberts has often stated by the doctrine of “Stare Decisis”–to stand by things decided”–although he has not been consistent on this over the years.

The odds of Roberts siding with the liberals on the Court for the image of the Court named after him as Chief Justice, is a thin measure of what kind of balance he might present on the future Supreme Court.

It seems likely that on balance, he will be “number 5”, in the middle, but that middle will be much farther to the Right than Anthony Kennedy or Sandra Day O’Connor represented.

But then again, Justices have surprised their Republican Presidents who appointed them, as with Earl Warren and William Brennan under Dwight D. Eisenhower; Harry Blackmun under Richard Nixon; John Paul Stevens under Gerald Ford; O’Connor and Kennedy under Ronald Reagan; and David Souter under George H. W. Bush.

The best estimate is that no one should count on John Roberts avoiding “his” Court from being regarded as the most right wing, conservative Court since the time of Warren G. Harding. Calvin Coolidge, and Herbert Hoover nine decades ago, before the Great Depression and New Deal began the transformation of constitutional law.

Utah Senator Mike Lee Seems To Have An Edge For Supreme Court Nomination

On June 28, this blogger suggested that Utah Senator Mike Lee was a likely potential possibility for the Supreme Court nominee to replace Justice Anthony Kennedy.

He would be a rarity, a sitting United States Senator, chosen for the Supreme Court.

There is no requirement that a sitting Federal Court judge must be chosen, although that has become the tradition since Governor Earl Warren of California was chosen to be Chief Justice by President Dwight D. Eisenhower in 1953, with only Sandra Day O’Connor, who served in the Arizona State Senate, and chosen by Ronald Reagan in 1981, having any elective experience since then.

As stated on June 28, we had Senators earlier, including most impressively, Hugo Black, who had done good deeds on the Supreme Court.

So the belief that Mike Lee has the advantage comes to the forefront again. It was announced that Lee had been interviewed for the position, so he is on the short list.

Lee is 47, which from the viewpoint of Donald Trump and conservatives, is ideal, meaning a 35 year term on the Supreme Court under normal circumstances.

Lee is a sometimes critic of Trump, who did not back him, which makes him seem independent of any influence by Trump if Lee was on the Court.

Lee is pro life, which would make it hard for Susan Collins and Lisa Murkowski to support him, but neither is needed as long as some Red State Democrats—Joe Manchin, Joe Donnelly, Heidi Heitkamp—all who voted for Neil Gorsuch last year—support him. And both Collins and Murkowski ended up voting for Gorsuch, so their protestations seem weak.

It would be difficult for either Collins or Murkowski to vote against their own party and Senate colleague in the end, as after all, both voted for Jeff Sessions as Attorney General, and Collins even gave a strong endorsement presentation before the Senate Judiciary Committee for his nomination to the Justice Department, despite his outrageous racism.

So I suggest that Lee might be the choice of Trump, and more likely to sail through confirmation, and with a likely 53-46 vote (without John McCain voting), and possibly more Red State Democrats justifying the vote for their “Senate colleague”!

Party loyalty and Senatorial “courtesy” give Mike Lee the advantage, at least in theory, but we shall see!

Supreme Court Membership Could Be Increased In Future By Democratic Party Senate Majority, Perfectly Legal

Progressives have developed the idea that in the future, when Democrats gain the majority of the US Senate, they may move toward increasing the membership of the Supreme Court, playing hardball as much as the Republicans have under Senate Majority Leader Mitch McConnell.

McConnell refused to allow hearings for Merrick Garland, Barack Obama’s Supreme Court nominee to replace the dead Antonin Scalia, saying it was an election year, and improper to allow an outgoing President to make an appointment.

This was preposterous, as John Adams named John Marshall Chief Justice in 1801, after losing reelection to Thomas Jefferson; Andrew Jackson chose Supreme Court Chief Justice Roger Taney in 1836, his last year in office; and Grover Cleveland, Benjamin Harrison and William Howard Taft chose Justices in their last year in office; and Herbert Hoover chose Benjamin Cardozo in 1932, his last year in office; and Dwight D. Eisenhower chose William Brennan in the year of his reelection campaign; and Ronald Reagan chose Anthony Kennedy in his last year in office in 1988.

We have had differing numbers of justices. up to ten, and there is no constitutional barring of adding more Justices, as Franklin D. Roosevelt wished to do in 1937.

What is good for the goose is good for the gander, as the saying goes, and this might be a way to wield power on the part of the Democrats to create a balanced Court, as otherwise, we will have the most extremist Court since the 1920s!

The Pressure To Be Brought On Senators Heidi Heitkamp, Joe Donnelly, Bob Casey Jr. And Joe Manchin On Supreme Court Nominee

With Donald Trump ready to announce his Supreme Court nominee on July 9, pressure is starting to be brought against four “Red State” Senators facing reelection, who might vote for Trump’s selection.

Three of them—Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, and Joe Manchin of West Virginia—crossed the aisle and supported Trump’s nomination of Neil Gorsuch to the Supreme Court last year, and have visited the White House already, being lobbied by Trump.

They, and Pennsylvania Senator Bob Casey, Jr, strongly anti abortion, but not supporting Gorsuch last year, are the four Democrats most worried about, with at least the first three feared likely to cross the aisle again.

The problem is that the Democrats cannot afford to repudiate these three or all four Senators, if they hope to have any chance of regaining control of the US Senate in November.

So while wishing to be critical and denouncing them if they abandon the Democratic Senate caucus on this matter, they are still needed for the future.

Supreme Court Battle Most Contentious Since Robert Bork And Clarence Thomas Nominations In 1987 and 1991

It is already clear, just two days after Supreme Court Justice Anthony Kennedy announced his retirement, that the battle to confirm a replacement will be the most contentious since Robert Bork was nominated by Ronald Reagan in 1987, and Clarence Thomas was nominated by George H. W. Bush in 1991.

Both times, the Democrats, however, controlled the Senate, and this time, they do not, which is a massive difference.

Bork was defeated in a roll call vote of 58-42, while Thomas was confirmed by a vote of 52-48.

The Democrats have limited ways to stop the confirmation of a replacement for Anthony Kennedy, as no longer can the filibuster tactic be used, and Senate Majority Leader Mitch McConnell is unwilling to give an inch to the Democrats.

The only hope for the Democrats is to convince Republican Senators Lisa Murkowski of Alaska and Susan Collins of Maine to back up their strong support of abortion rights, but both voted for Neil Gorsuch last year, as the first Supreme Court choice of Donald Trump.

But it is certain that the fireworks over this nomination, whoever it might be, will make the 2018 midterm elections even more a reason for all Americans to pay attention and to vote, as clearly, voting can change the course of history, and non voting has consequences!

What If Utah Senator Mike Lee Is Nominated For Supreme Court?

Early speculation on who Donald Trump might select to replace retiring Justice Anthony Kennedy on the Supreme Court centers on Utah Republican Senator Mike Lee, an original Tea Party member, having served in the Senate, and promoting libertarian ideas since 2011.

Not always a supporter of Trump, and not backing him in 2016 due to the Access Hollywood tape, Lee would still be a prime choice for Trump.

Lee is only 47 and could be expected to serve on the Court until 2050 and beyond.

He is a member of the Senate Judiciary Committee, which has to consider the Supreme Court nomination, and there are 11 Republicans to 10 Democrats on that committee.

To believe that any of his GOP colleagues on the committee, or even in the Senate, would vote against their party member, is hard to conceive.

And if all 50 Republicans stay united (minus John McCain, who is not likely to return to Washington DC anytime soon), at the worst, Vice President Mike Pence can vote if need be, but a 50-49 vote is a majority, and likely, a few Democrats, in red states facing election, would cross the aisle and vote for Lee, as they did for Neil Gorsuch a year ago.

Having a Senator on the Supreme Court is not unheard of, as it has happened 15 times in American history.

Most famously, there was Alabama Democratic Senator Hugo Black, who served on the Court for 34 years from 1937 to 1971, appointed by Franklin D. Roosevelt. And President Harry Truman appointed two Senators—Sherman Minton of Indiana, who served from 1949-1956; and Harold Burton of Ohio who served from 1945-1958.

Also, there have been 17 Congressmen who served on the Supreme Court, including Warren G. Harding appointee George Sutherland of Utah who served from 1922-1938; and Chief Justice Fred Vinson of Kentucky, who served from 1946-1953, appointed by President Truman.

Finally, 6 Governors have been appointed to the Supreme Court, the last and most famous being California Governor Earl Warren, appointed Chief Justice by President Dwight D. Eisenhower in 1953 and serving to 1969; along with significant appointments by President Abraham Lincoln of Ohio Governor Salmon P Chase to be Chief Justice, serving from 1864-1873; former New York Governor Charles Evans Hughes, first appointed to the Court by William Howard Taft from 1910 to 1916, and then returning to the Court as Chief Justice by appointment of President Herbert Hoover from 1930-1941; and Michigan Governor Frank Murphy, appointed by FDR and serving from 1940-1949.

The Tough Battle Ahead On Supreme Court Replacement For Justice Anthony Kennedy

The retirement of Supreme Court Justice Anthony Kennedy, a conservative but moderate on such issues as gay rights and gay marriage, abortion, affirmative action, flag burning, and the use of the death penalty, leaves the Senate in a tough battle for confirmation of whoever Donald Trump appoints as his replacement.

The fair thing to do would be to postpone the appointment and confirmation hearings until after the midterm elections of 2018, just as Senate Majority Leader Mitch McConnell prevented hearings and a vote on Barack Obama’s choice of Merrick Garland to replace Justice Antonin Scalia in 2016, a Presidential election year. But it is clear McConnell has no such intentions to treat this situation in the same manner as he did two years ago.

So the question is whether there is any possibility of stopping a Trump appointment, and it seems pretty gloomy and very little chance to intervene and delay or prevent a confirmation of a new Supreme Court Justice.

With only 49 votes, the Democrats need one or two Republicans to join them in opposition, and for all Democrats, including more moderate and conservative members of the caucus, to stay loyal, even in an election year where 10 Senators who are running for reelection are from Trump carried states.

The saddest part of all this is that now we will have FOUR Supreme Court Justices–two by George W. Bush and two by Donald Trump–selected by Presidents who massively lost the popular vote in the elections in 2000 and 2016 when the Electoral College went to them.

Six of the last seven Presidential elections have seen the popular vote won by Democrats, all but 2004 since 1992, but the power over the future of the Supreme Court has been lost for the long term, for the next 30 years, beyond the theoretical lifetime of this author and blogger, and of many people who are 40 or over right now!

The End Of The Supreme Court Term: Any Retirements Coming?

This is the last week of the present Supreme Court session, and Court watchers are wondering if we are about to see a sharp swing to the Right, with the potential retirement of Justice Anthony Kennedy, appointed by Republican President Ronald Reagan nearly 30 years ago, and a crucial swing vote ever since on the Court.

Kennedy has been on the conservative side about two thirds of the time, and on the liberal side one third of the time, and without him, for instance, there would have been no advancements on gay rights and gay marriage, as he was the crucial fifth vote.

His vote this week may decide whether the Muslim ban of Donald Trump is upheld, or prevented, as it has been by several circuit courts around the nation.

Kennedy has been the unpredictable vote all by himself in the past decade, since Sandra Day O’Connor left the court at the end of 2005.

For a decade before 2005, it was said the Court was the “O’Connor-Kennedy Court”, and now for the past 12 years, it has been the “Kennedy” Court, more than the Roberts Court, as traditionally, the Court is described by the name of its Chief Justice.

Since Kennedy will be turning 81 in one month, and is the second oldest member of the Court, after Ruth Bader Ginsburg, who is 84, but has made clear she is going nowhere, and hopes to stay on the Court until 2021, so that hopefully a future Democratic President in 2021 can choose her successor.

So if Kennedy does retire this week, it will mark a sharp move to the Right, which will undermine constitutional law for the next generation!

Neil Gorsuch On Supreme Court A Fateful Turn To The Right, Unless He Surprises, As Other Republican Appointments In Past Have Done

Seven Republican appointments to the Supreme Court since 1953 turned out to be less conservative than expected, so the question that arises, as Neil Gorsuch, appointed by Donald Trump, becomes the 113th Supreme Court Justice in American history is, will Gorsuch follow that lead?

At this point, it seems highly unlikely, but there is no way to know how a person on the Court, who potentially could be there for 35 years, until 2052, will react as cases come before him. If he has an open mind, he could surprise us, as history records for appointees of Presidents Dwight D. Eisenhower, Richard Nixon, Gerald Ford, Ronald Reagan, and George H. W. Bush prove.

Chief Justice Earl Warren and Associate Justice William Brennan, appointments of Eisenhower, thought to be conservatives, turned out to be path breaking liberals on the Court.

Associate Justice Harry Blackmun, appointed by Nixon, proved to be the same, as did John Paul Stevens, appointed by Ford.

Associate Justices Sandra Day O’Connor and Anthony Kennedy, chosen by Reagan, proved to be the swing vote,often siding with the liberal side of the Court, despite their generally conservative bent.

And David Souter, appointed by the first Bush, also proved to be a surprise on his vote much of the time.

So we will see over the next few years if Neil Gorsuch surprises.

Time For Supreme Court To Intervene, And Overturn Trump Executive Order On Travel Ban

A federal District Court judge has stopped the Trump executive order travel ban for the time being, but it is being appealed by the Trump Administration, meanwhile causing chaos, as the future of the order is uncertain.

It is time for the American Civil Liberties Union and other groups to appeal to the Supreme Court, and find at least one Justice willing to put his or her neck out to use their influence to stop the travel ban permanently, and have the entire Supreme Court consider the ban immediately.

I would propose that Justice Ruth Bader Ginsburg, the true hero of progressivism, do so, and force the issue.

We know that Trump hates Ginsburg, and has tried to bully her into retirement, but she is a tough lady, who will not be intimidated.

But it would be perfect for the 84 year old Justice, who is less than 5 feet tall, to challenge BULLY Trump, and give his executive order a “Punch in the Mouth”!

Of course, no one can be sure what the eight member Court would do, but it seems highly likely that besides Ginsburg, we would have Stephen Breyer, Sonia Sotomayor, and Elana Kagan join her, making for at least a tie vote.

And somehow, it seems also likely that the “swing vote” on the Court, Justice Anthony Kennedy, would also join these four Justices, making for a 5-3 vote.

So bring it on, Ruth Bader Ginsburg, intervene and make for a confrontation with Donald Trump!