This is HUGE: Justice Kennedy is retiring!
If you are one of them, I still don't think it outweighs the damage Mr. Trump has done to the nation and will continue to do in the future, but he is now in a position to vindicate your reason for voting for him.
Justice Anthony Kennedy, the author of Obergefell and Hodges (the decision which legalized same-sex "marriage" throughout the nation) and the linchpin preventing the modification or even overturning of Roe v. Wade, announced his retirement today. It will take effect July 31.
President Trump will now be in a position to appoint a successor who will give the Court, in reality, the rightward tilt liberals have claimed it had all along. Kennedy, a Reagan appointee who actually did prove to be a conservative on many issues, was often called the Court's "swing vote." But on social issues, he is the man responsible for the Court's leftward tilt in recent years. President Trump says that he will be replaced by someone on a list of potential nominees already made public. All of them are originalists in the mold of Justice Gorsuch.
It's hard to overestimate the importance of Justice Kennedy's announcement. I seriously doubt that Obergefell will be repealed by the new Court, but there is an outside chance that it could be modified to allow states to grant gay and lesbian couples the same legal rights married heterosexual couples enjoy without actually requiring them to keep gay marriage per se legal. Nor do I think that there's much chance that Roe v. Wade will be overturned, though some disagree.
While such a thing is certainly possible, I think it far more likely that the Roe will be modified to permit states to restrict or outlaw abortions except in extreme circumstances. I have little doubt that abortion in cases of rape, incest, a threat to the life of the mother, or gross fetal abnormalities incompatible with life will remain protected, and it's possible that other circumstances will be included among the permissible grounds. Pro-abortion politicians and activists continue to claim that an overwhelming majority of Americans support Roe. Yet according to a Gallup poll earlier this month, 53% of Americans currently believe that abortion should be legal in only a few or in no cases, while only 43% believe that it should be legal in all or most cases. Ever since 1994, when Gallup began asking the question in the present form, no fewer than 51% of those polled have said that they believe that abortion laws should be more restrictive than they are. I would be very surprised if the Court's new conservative majority doesn't follow that consensus.
The fight to confirm Justice Kennedy's successor will be fierce. Democrats argue that since the Republican Senate declined to consider President Obama's appointment of Judge Merrick Garland to the Court following the death of Justice Antonin Scalia because of the proximity of an upcoming election, Republicans would be hypocritical to confirm Mr. Trump's appointment of a successor to Justice Kennedy so close to this year's midterm elections. Republicans, of course, will respond that Judge Garland was appointed in the penumbra of a presidential election and that the same president will be in office next year regardless of the outcome of the voting in November. While the situations are not exactly parallel, I personally expect the Democrats to win control of the Senate this fall- and I see no chance, given all that is at stake in this nomination, that a Democrat-controlled Senate would vote to confirm any nominee President Trump might send it.
Senate Majority Leader Mitch McConnell has made it plain that the vote on the confirmation of Justice Kennedy's successor will take place this fall. The Senate currently has 51 Republicans and 47 Democrats, with two independents who align with the Democrats. Sen John McCain is in Arizona convalescing from surgery from brain cancer. Assuming that he is unable to be present, the vote would appear likely to end in a tie, with Vice-President Mike Pence casting the deciding vote to confirm the new justice.
The left is already flipping out over the prospect of losing the institution which far more than any electoral result has enabled it to impose its social views on the nation and give them the force of law. Whether Trumpists or Counter-Trumpists, extremists always tend to overreact to anything, of course. But it's unlikely that the consequences of a Supreme Court with an actual conservative will be nearly as far-reaching as they fear. The bottom line is that, at least for the present, the Constitution has been saved. The "living Constitution" theory appealed to by "progressives" to justify interpretations of the document unwarranted by the text makes the text itself a dead letter. The justices and their personal opinions have become the true "living Constitution." All that will end now.
Justice Ginsburg may or may not retire soon; I doubt that President Trump would be able to get her successor confirmed because I believe that come January he'll be dealing with a Democratic Senate, but his own Democratic successor will be able to do no more than to replace her with someone ideologically similar. Still, as we learned from the death of Justice Scalia, the balance of the court can suddenly shift at any moment.
At the moment, it appears that the Supreme Court will be making decisions for the foreseeable future on the basis of what the Constitution says rather than what the justices wish it said. What troubles me is the years to come. I continue to expect the presidency of Donald Trump to so completely compromise the Republican party in the eyes of the nation's voters that no Republican will be elected president again in my lifetime- and that potentially the successors not only of Justice Ginsburg and Justice Bryer but perhaps even Justice Alito will be appointed by Democrats.
But I hope I'm wrong. Perhaps Justice Kennedy's retirement will usher in a new age of rulings from the Court based on the Constitution and the law rather than on ideological wishful thinking. Perhaps the Republican party will regain its sanity and live down its embrace of Donald Trump- although I doubt it- and manage to rehabilitate itself in the eyes of the American people. Or perhaps a new, centrist party will arise to fill the vacuum left by the Republican drift into tinfoil-hat extremism, nativism, and authoritarianism under Mr. Trump. But let it be said that today, at least, I have to admit being glad that Donald Trump rather than Hillary Clinton will be nominating Anthony Kennedy's successor.