New justice won’t be as predictable as both sides think
always sore winners, fired their guns in the air, swatted Hillary-Clinton pinatas and — I’m not sure this part is true — square-danced ‘til way past dark.
Whatever the outcome of President Trump’s nominee, slated to be announced on Monday, we can expect a battle royale as specialinterest groups, presidential wannabes and midterm candidates rev their fundraising engines. There won’t be breathing room in the Senate confirmation chamber during confirmation hearings. Nor will envy of the nominee — my money’s on federal appeals court Judge Brett Kavanaugh — linger long in the hearing room. What sane mortal would wish upon him- or herself such scrutiny, marooned alone on the block to be picked at by scoundrels, fools and pontificating provocateurs?
This Hogarthian image may be a better predictor of what lies ahead than 10,000 words of analysis. On abortion, as well as same-sex marriage, a conservative court on social issues would lag the American people, a majority of whom hold a non-absolutist position on abortion rights, even if many wouldn’t object to some reasonable restrictions, according to the Pew Research Center. A majority of people also have made peace with alternative family formulations. Sixty-two percent support same-sex marriage, also according to Pew.
What new justice would want to be that man or woman, who forevermore would be credited with upending settled law and causing massive societal upheaval? As for other conservative justices, only Clarence Thomas would likely vote to overturn Roe. Sen. Susan Collins, R-Maine — one of the most important voices in this discussion — echoed the thoughts of close-to-thecourt sources, who told me that neither Chief Justice John Roberts nor Neil Gorsuch would likely want to wade into that swamp and weigh in on a Roe v. Wade reversal.
Precedents, meanwhile, matter — and not just in law. In the current debate, the guiding precedent is that justices often do the opposite of what is expected of them. Kennedy, a Republican nominated by Ronald Reagan, was Exhibit A. Instead of towing the conservative line, he became a liberal darling for his often-liberal positions on individual freedoms — up until the end when he sided with other conservative justices in protecting pro-life pregnancy centers.
Similarly, George W. Bush couldn’t have imagined that Roberts, one of his picks, would side with the Obama administration on the Affordable Care Act. That said, it bears mentioning that Roberts, pilloried by the right for his ruling, was never given due credit for actually creating the mechanism by which Obamacare was effectively stopped in its tracks. By ruling that the individual mandate was a “tax,” contrary to what the administration had insisted, Roberts made it possible for Republicans to kill the mandate through last year’s tax law.
No one should try to predict how a justice or the court will rule. For now, lamentations about abortion’s end are wasted on what is mostly a red herring deployed for political expediency. But it will have served its purpose, which is to separate voters from their dollars, get the bases ripe and ready for Election Day, and give politicos and pundits something to knit and fret about. As for Cassandra and Chicken Little, who, alas, never had a child together, the future holds great promise for peril.