Monday, July 9, 2018

How to watch and interpret Trump's Supreme Court pick

Today, our reality show President is going to name his next Supreme Court appointment.  (OK, technically, President Camacho was the victim of sexual assault rather than the perpetrator, but we live in bizarro world.)  According to PredictIt betting as of this morning, Kavanaugh is the favorite, with 48 cents on the dollar, with Barrett next at 36 cents.  Kavanaugh has consistently been the favorite, with the other betting more volatile.  There are many things that can be predicted through prediction markets based on publicly available information.  Remember, though, that this is all about Trump's whims.  Can the people making bets on PredictIt predict Trump's whims?  Eh...

At this point, we turn to the old line from the Tammany Hall kingpin, Boss Tweed.  "I don't care who does the electing, so long as I get to do the nominating."  Different politics, different context, and all that, but it demonstrates an important point.  As far as movement conservative leaders are concerned, Donald Trump is nothing more than a useful idiot.  In other contexts, he is best described as a useless idiot, but to movement conservatives, when it comes to court appointments, he's a useful idiot.  Someone else does the nominating, he does the electing.  Selecting.  Whatever.

OK, technically, what Trump is doing is called, "nominating," but I'm playing with language and concept here.  Just go with it for a moment.

Anyway, the Federalist Society.  Part of its purpose is to signal ideological conservatism in the legal profession.  No, that's not what they say, but they're liars.  I hate liars.  They're conservatives.  Go hardcore Federalist Society, and you are signaling ideological conservatism.  This is a useful signal to send because judges don't cast roll call votes on ideologically distinct legislation the way that legislators do, and that's how people like me prefer to assess ideology.  It allows Republican presidents to ensure that they can select ideologically conservative judges who won't go Souter on them, but don't have the written record to get Borked.  The Federalist Society is a part of this process, but by no means the only part.  Conservatives are still fuming about David Souter.

So, there is a process in place to ensure that any name handed to a Republican president is pre-vetted to ensure fealty to conservatism.  What happens if a president steps outside that?  Harriet Miers and the ensuing backlash from the GOP.  Trump is just going to let Boss Tweed, I mean, the Federalist Society do the nominating for him.  He'll do the electing, but so what?  Boss Tweed, I mean, the Federalist Society will be happy.

Yes, I have messed with the language here.  When Trump, "nominates," that is the analog to Tweed's "electing" rather than Tweed's "nominating."  Sorry about that.  Really, though, the Senate is just a formality.  As long as Trump really does go with a conventional pick like Kavanaugh, he'll have no problems because the Democrats have no moves.  If necessary, McConnell will wheel McCain's hospital bed onto the Senate floor, and have a page physically take McCain's unconscious hand to cast the vote.  McCain could die, and it would be Weekend at Mitchy's if necessary.  Collins?  She's a useless idiot to the left, and a useful idiot to the right.  She may say she'll only vote for someone who won't overturn Roe v. Wade, but ignore her.  Trump won't appoint anyone who will uphold Roe, and Collins won't vote no.

Who will Trump appoint?  I have no real idea.  I would lean towards him picking a male because a) he's a misogynist, and b) he believes that a case about him may go before the Court and he will want it ruled on by as many men as possible.  Is that why people are putting more money on Kavanaugh than Barrett?  I have no clue.  It's Trump.

By the way, you may have seen some speculation about Democrats responding to the current situation with actual, serious court-packing the next time they get a chance.  I've been talking about that for a while.  I've been warning of it in the classroom since McConnell pulled his Scalia stunt back in 2016, and writing about it here, starting over a year ago.  See, for example, here and here.  Would the Democrats actually do it?  Right now, I doubt it.  Democrats are cowards, and I can't see that changing, but watch the debate.

Amid the reality show mess of our politics.


  1. Read some interesting pieces lately that theorize that they won't overturn Roe. They'll just effectively gut it.

    Overturning Roe just returns it to the states anyway, and blue people could still have abortions. But the Court could also just rule that EVERY restriction passed in a red state is fine.

    There are 5 states that have a single abortion clinic. Another 3 states have just 2. And those are not small states (by area). Tack on things like fetal heartbeat restrictions, etc., and abortion could be THEORETICALLY legal in like half the states, with no way for an actual person to obtain one.

    Plus of this plan: liberals don't get riled up by the death of Roe, and conservatives get to keep fleecing their base with the promise of getting rid of Roe.

    1. Plausible, but anyone who claims they can predict with certainty the behavior of John "NFIB v. Sebelius" Roberts is either crazy, lying, or has blackmail material on the guy. It wasn't just what he ruled, but how he got there. I could see Roberts telling four hard-right Justices that he'll uphold any restriction, but not strike down Roe, but I also think it depends, to some degree, on the case, so there will be some strategizing among the states and activists about what law to write and what challenge to bring, targeted specifically at Roberts to minimize his wiggle room. Like, no abortions ever. OK, Roberts. Either the law goes, or Roe goes. Make up your mind. A properly built challenge might not give Roberts a way out, and the activists are going to keep NFIB v. Sebelius in mind.