When Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, he sent shock waves through the political system. It is President Donald Trump’s duty to nominate a replacement, and Democrats are losing their minds, rushing to prevent the usual order of the Senate considering a presidential pick. This one event will likely fire up Republican voters and set the stage for another 2016-style surprise, dealing the “blue wave” a fatal blow.
It is difficult to state the importance of the U.S. Supreme Court, especially after the Obama years. Donald Trump scored an estimated 81 percent of the self-identified evangelical Christian vote — despite his moral failings — at least partly because conservatives saw this as the last chance to save America from progressive judicial activism.
Remember, the U.S. Supreme Court struck down the Defense of Marriage Act in 2013 and Justice Kennedy make same-sex marriage legal by the stroke of a pen in the 2015 decision Obergefell v. Hodges. These moves echoed the long history of conservative Christians sensing Supreme Court activism undermining their basic moral convictions — and targeting their institutions.
In Hillary Clinton, evangelicals saw not just an extension of this liberal activism, but a candidate whose animus toward them led her to compare opposition to the LGBT agenda to female genital mutilation and honor killings. This utter hatred and mistrust helped drive conservative Christians to support a candidate many considered beyond the pale.
In 2018, Democrats are at it again, and November provides conservatives a chance to turn out and vote to preserve the original meaning of the Constitution. Democrats, in attempting to use the issue to turn out their own base, are likely to see it backfire. To make matters worse, Democrats have more Senate seats to defend in states Trump won in 2016.
On Wednesday, shortly after Kennedy announced his retirement, Senate Minority Leader Chuck Schumer (D-N.Y.) called on the Senate to wait to confirm any Trump nominee until after the November elections. He justified this by appealing to Senate Majority Leader Mitch McConnell (R-Ky.)’s decision not to consider an Obama nominee during an election year.
This comparison was absurd. Kennedy retired at the end of a Supreme Court term, as is customary. By contrast, Justice Antonin Scalia died suddenly — in a presidential election year. It made sense to deny a nomination to Obama, then a lame-duck president, and allow the presidential election to play out first. A midterm election does not involve a president, so there is no reason to refuse to give a nominee a hearing.
Even so, Democrats have dug in their heels, making the Supreme Court an issue in November. Many Democrats running in states Trump won have decided to dig in their heels. This year’s Senate map is extremely positive for Republicans, only nine of whom have to run for re-election, while 26 Democrats face elections this year.
Sen. Bill Nelson (D-Fla.), who faces a stiff challenge from Gov. Rick Scott (R-Fla.), joined Schumer in calling for a delay in replacing Justice Kennedy. “I believe the American people should be given the opportunity to express their view in the upcoming election, and then have the Senate exercise its constitutional duties,” he said.
Sen. Bob Casey (D-Pa.) called on the Senate to refuse to give any Trump nominee a hearing until after the election. “The Senate should only consider this nomination when a new Senate is seated in January,” he said. Casey also explicitly rejected any person from Trump’s list compiled by the Heritage Foundation and the Federalist Society.
Some Democrats know how vulnerable they are, and have decided not to die on the Supreme Court hill. Sen. Joe Manchin (D-W.V.) not only said he would consider Trump’s nominee this time around, but he also voted for Gorsuch last year. Sen Sherrod Brown (D-Ohio) said he would consider Trump’s pick, but urged the president to choose a moderate. Sen. Claire McCaskill (D-Mo.) also held back, saying she would consider a Trump nominee. She voted against Gorsuch, and expressed this fear last year: “God forbid” Kennedy retires.
Sen. Martin Heinrich (D-N.M.) is running for re-election in a blue state, but his popularity is slipping. Even so, he drew a line in the sand, opposing Trump’s list of potential nominees.
The list Trump is choosing Supreme Court nominees from was preselected by right-wing billionaires who have conspired for decades to criminalize abortion, discriminate against the LGBTQ community, and buy our democracy. #WhatsAtStake
— Martin Heinrich (@MartinHeinrich) June 28, 2018
Republicans are technically in power, but conservatives feel increasingly embattled. Major news outlets, celebrities, and companies have adopted liberal positions and mocked and belittled conservatives.
Liberals have started harassing Trump administration officials at restaurants and even in their homes. This breakdown in civility will fire up conservatives and it makes their sense of being a hated group concrete.
The Southern Poverty Law Center (SPLC) continues to demonize mainstream conservative groups as “hate groups,” and those groups are considering a massive defamation lawsuit. Tech companies like Google, Apple, and Amazon use the “hate group” list to target organizations, despite the fact that the SPLC’s “hate map” inspired a terrorist attack in 2012.
Increasingly, activists are pushing LGBT issues on the entire population. While the Supreme Court rightly defended Jack Phillips (the Christian baker who refused to bake a cake for a same-sex wedding on free speech grounds) from anti-Christian animus, it refused to defend his free speech rights. To make matters worse, two liberal Supreme Court justices even disagreed that there was any anti-Christian bias involved — when the court in question compared Phillips’ action to the Ku Klux Klan!
Groups like the SPLC have advocated Internet censorship, in an era when YouTube has restricted PragerU videos, Google is reportedly targeting a conservative mailing list for reprisals, and Facebook has banned a German historian for comments about Islam’s impact in European history.
By the way, Democrats nominating outright socialists to represent them does not help assuage conservative fears that everything will be political and they will be made to agree. After all, a judge removed a 17-year-old girl from her parents’ custody because they didn’t encourage her sexual identity.
The Supreme Court is at the nexus of so many important culture issues, and vulnerable Democrats are making it an issue.
Turnout tends to be low in midterm elections, but key issues usually drive it up. The reason so many liberals are convinced there will be a “Blue Wave” is that many Democrats want to vote against Donald Trump at any opportunity, and they believe that voting for Democrats for Congress will effectively do that. (Many are campaigning on impeaching Trump.)
Few issues would balance out this liberal enthusiasm like the Supreme Court. With Democrats pledging not to consider any Trump nominee, and others having voted against Gorsuch (with whom conservatives are very happy), they may be setting themselves up for electoral doom in November.
It has always been likely that Republicans will win a Senate seat or two this year. Now, Democrats have made that effectively certain. The House battle remains to be seen, and is much harder to predict, but increased turnout for the Supreme Court would buoy Republicans there as well.
In two moves, first Kennedy then Schumer, current events gave Republicans an extremely powerful shot in the arm. This “Blue Wave” is becoming more and more a fantasy.