Time to process
Democratic U.S. Senator Chris Coons of Delaware understated the moment. He declared Wednesday that he needed time “to process what is probably the biggest development in constitutional jurisprudence in my lifetime.” There isn’t any “probably” to it. What is on the line in replacing Associate Justice Anthony Kennedy on the U.S. Supreme Court is merely the country’s direction for a quartercentury or more on women’s rights and gay rights.
Conceivably at risk is the right of sick people to buy equitably priced health insurance without being penalized for the misdemeanor of contracting a disease. But, on that, remember that it was Chief Justice John Roberts, not Kennedy, who provided the fifth vote to save the Affordable Care Act in 2015.
It is possible that Roberts, concerned about the legacy of a court bearing his name, could henceforth consolidate his occasional swing votes with the nature of Kennedy’s occasional swing votes, and save some modern-era progress. But that’s not a prediction; it’s a plea.
Kennedy wasn’t really all that when you look at his full record of 30 years. But when he was the swing, he was really the swing. Roe v. Wade still limps because of him.
Gays may marry because of him.
Coons sells the moment short by limiting it to constitutional jurisprudence.
The U.S. Supreme Court decides and defines politics and culture. In terms of the bigger political/cultural developments in our post-World War II American lifetimes, losing Kennedy’s occasionally pivotal compassion to a demagogue’s nominee surely ranks right up there with the tragic election of that demagogue in the first place.
There can hardly be a bigger moment than the one in which we allowed into Oval Office occupancy a lunacy-prone tweeter of all-capitalized, exclamation-pointed, juvenile and megalomaniacal ravings. This Supreme Court moment is extraordinary in that, even as a mere byproduct of the mad presidency, it seems as big.
The election of the first black president is now relatively minor, almost forgotten, an aberration occurring during the decline from Ronald Reagan’s simplistic and poetic conservatism to Donald Trump’s crude and bullying conservatism.
Coons said he needed time to process it all. I suspect he was talking about the political calculus as much as the jurisprudence.
Chess moves take time, but the moves that a chess player contemplates are not as tactically complicated as those currently confronting Democrats.
They already were entering the internal throes of an angry left-wing insurgent movement akin to what the Tea Party and Trump did to the Republicans from the right. There is growing belief from the newly active further-left that even Nancy Pelosi and Chuck Schumer are too moderate, too obliging, too disinclined to kick, claw and bite in the way Republicans kick, claw and bite.
The anger was strong even before Kennedy’s announcement multiplied it by the scarred reminder that Republican senators cheated the last duly elected Democratic president out of his right to appoint a decisive fifth justice in 2016. Now angry insurgents on the left are confronted with Democrats in the Senate whom they fear will prove typically toothless and hapless while a second-place president gets to make the life-changing nomination they let the Republicans cheat them out of.
Nerves are frayed. Feelings are raw. Tempers are flared.
The prevailing early political theory is that this epic moment moves both parties to the poles and destroys any previously faint hope of competent governing from the center.
The pre-emptive outrage among left-wing Democratic insurgents is based on their assumption that Democratic Senate incumbents on the ballot in November in red states like Montana, Missouri, Indiana and West Virginia will lack the nerve to oppose Trump’s nominee—and, typically, wind up defeated after obliging the other side to try from fear and acquiescence to protect themselves.
If that happens, Democratic liberal incumbents will start losing primaries to the further-left, much as conservative Republicans incumbents started losing to their right flank in primaries in 2010.
It happened already last week in New York. One of the chief lieutenants to Pelosi, herself polarizing in a reddened mass like Arkansas, lost a Democratic primary to a younger opponent championing diversity, Medicare for all and general democratic socialism.
Remember, though, that Coons, and all of us, need time for processing. It seems possible, maybe even probable, that those red-state Democratic Senate incumbents would be better off championing the salvation of any hope of moderation. They could oppose Trump’s certain right-wing nominee as out of touch with their decisive independent-minded homestate voters who want Washington to work more together, not implode even more destructively.
If the 49 in the Democratic caucus could stick together with blended reasoning, maybe Susan Collins or Lisa Murkowski or John McCain—or someone—would come over.
That could force the madman president to do as Reagan did after nominating Robert Bork, which was wind up … as it turned out … nominating Anthony Kennedy.