Kennedy’s retirement gives Trump path to uniting GOP

Michael Gerson

Luck — pure, dumb luck — is an underestimated advantage in politics, and Donald Trump is one lucky man. He ran for the Republican nomination against a fractured field, in which the other candidates tore each other to shreds. He drew a historically unlikable and self-destructive general-election opponent. He got a last-minute boost from then-FBI Director James Comey’s inexplicable decision to announce the reopening of the Hillary Clinton email investigation. He entered office on an economic upswing. And he will choose two justices — at least — for the Supreme Court.

For Trump, the retirement of Anthony Kennedy could not be better timed. Replacing the Supreme Court’s most prominent swinger combines every culture war battle into a single, all-consuming conflagration. And when hatred is at its height, and civility and comity completely break down, and Americans are at each other’s throats, Trump is in his element.

The actual stakes of the struggle are a bit lower than either side will admit. Activists are already making the shorthand argument that replacing Kennedy with a conservative judge means the death of Roe v. Wade. In fact, replacing Kennedy with a conservative judge means that Chief Justice John Roberts will become the new swing vote. This will probably make the court more likely to take up decisive and fundamental cases on cultural matters. But Roberts — as he demonstrated in his 2012 decision leaving Obamacare largely in place — is uncomfortable with sweeping decisions and willing to risk conservative displeasure.

The result of a Roberts-dominated court, over time, would probably be the weakening of Roe’s prochoice absolutism. This would allow states more latitude to make incremental restrictions. But before Roe, many states were already moving in a pro-choice direction. And the availability of abortion has become a deeply entrenched social expectation. A democratically determined outcome in most places would probably involve very few restrictions on early abortions and greater restrictions on lateterm abortions.

Roe is vulnerable to revision because it is medically, morally and legally incoherent. It drew a series of preposterously arbitrary scientific lines, declared the ethical concerns of millions of Americans inconsequential and forestalled the development of a more stable and legitimate democratic consensus. In all likelihood, Roberts will try to allow democracy to resume its work in this matter. This is not likely to please those who view abortion as a fundamental right or as a fundamental wrong. But the result would probably be more favorable to the prochoice position.

As a political matter, however, the fight over Kennedy’s replacement is a gift to the president. It is a reminder of Trump’s adherence to the deal he made with evangelical supporters: Ignore my bigotry and bad character, and all the kingdoms of the courts, from lowest to highest, will verily be yours.

In his tariff policy, Trump is an economic illiterate. In his foreign policy, he is an easily manipulated tyro. In his immigration policy, he is condemning Republicans to future defeat. But when it comes to the choice of judges — which he has effectively delegated to the Federalist Society — Trump is firmly in the GOP mainstream.

Unless Trump blows this nomination with a foolish, impulsive pick, he will enter the midterms with a cause that excites his base and unites his party.

Once again, Trump’s luck holds.