Consent of the Governed, Part 2

This past Monday, the president nominated Judge Brett Kavanaugh to replace Anthony Kennedy on the U.S. Supreme Court.  The balance of power being what it is, unless Kavanaugh is found with a dead girl or a live boy (in the immortal words of Edwin Edwards), he will be confirmed by the Senate later this year and the nation’s highest court will be as ideologically conservative as it has ever been in our lifetimes.

From the moment Justice Kennedy announced his retirement last month, liberals have been running around the airwaves with their hair on fire, screaming that this development constitutes the end of the world as we know it.  That the replacement of Kennedy’s so-called moderation with the true blue right-wingery of his successor will usher in a generation of irreversibly destructive decisions on every issue the left holds sacred, from abortion rights to gun control to civil liberties to campaign finance reform.

While Democrats’ concerns about Kavanaugh are undoubtedly well-founded—after all, he comes pre-packaged and pre-approved by the conservative judge factory known as the Federalist Society—they are also misleading and incomplete, insomuch as they overlook a much larger and more profound fact:

Ruth Bader Ginsburg is 85 years old.

Lament Kennedy’s departure if you wish, but the truth is that he was a fundamentally right-wing jurist whose flirtations with progressive causes, however crucial, were few and far between.  While he is rightly credited with preserving abortion rights in 1992 and effectuating same-sex marriage in 2015, he is equally responsible for the majority opinions in Bush v. Gore and Citizens United v. FEC—the two worst Supreme Court decisions since Plessy v. Ferguson, according to most liberals.  During the most recent term, he voted with the court’s conservative wing in every high-profile case that was decided by a 5-4 vote.  Every.  Single.  One.

Long story short:  Replacing Kennedy with a rock-ribbed conservative will not be the end of the world as we know it.  But replacing Ruth Bader Ginsburg with a rock-ribbed conservative?  That will be the end of the world as we know it.

Perhaps it is bad form to observe that most human beings do not live forever, but if the Democratic Party is truly freaked out about losing every major Supreme Court case for a generation or more, it must come to grips with the fact that its most beloved and indispensable justice—the Notorious RBG—is an octogenarian and two-time cancer patient who, for health reasons, might need to leave the bench before the next Democratic president takes office.  Ginsburg may intend to serve well beyond the current administration, but then again, so did Antonin Scalia on February 12, 2016.

If Nancy Pelosi and Chuck Schumer plan to make themselves useful in the coming months, they ought to emphasize, in no certain terms, that a Republican-majority Senate in 2018-2019 guarantees the appointment of Judge Kavanaugh—already a foregone conclusion, so far as I can tell—and that the re-election of Donald Trump in 2020 makes it exceedingly likely the court will contain only three—or perhaps only two—liberals by the end of Trump’s second term.  (Ginsburg’s like-minded colleague Stephen Breyer turns 80 next month.)

Elections have consequences, and one of them is a Supreme Court shaped in the image of the sitting commander-in-chief—an arrangement that has been in place continuously since 1787.

The left can whine all it wants about Russian shenanigans and Mitch McConnell’s dirty tricks vis-à-vis Merrick Garland, but the fact remains that people voted for president in November 2016 in the full knowledge that a) the winning candidate would be selecting the successor to the late Antonin Scalia, and that b) there would almost surely be additional openings on the court before his or her presidential tenure was up.  Candidate Trump made this point repeatedly on the campaign trail.  In retrospect, Hillary Clinton did not make it nearly enough—a mistake her party’s candidate in 2020 would be well-advised to avoid.

Lame as it may sound, Neil Gorsuch is on the Supreme Court today because Donald Trump received the most electoral votes in 2016 and there weren’t enough Democrats in the Senate to stop him.  Brett Kavanaugh will be on the Supreme Court this fall for precisely the same reason.

If you find this situation intolerable, you have two choices:  You can vote for Democratic senators on November 6, 2018, and for a Democratic presidential candidate on November 3, 2020.  Or you can assume John Roberts will magically evolve into a liberal overnight and that Ruth Bader Ginsberg will live to 120.

Personally, I’d recommend Option No. 1, however inconvenient it might be.  You’d be surprised what a democracy can accomplish when its citizens behave democratically.

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