Centrist senators can save the court
Wednesday, July 4, 2018
The future of abortion, voting rights and LGBT protections in the United States are just a few of the dozens of issues that depend on the selection of one person, which will in turn depend on the votes of a handful of centrist senators.
In vetting the next Supreme Court justice, those powerful centrists will want to avoid further politicizing the judiciary by opposing an accomplished nominee. Yet they should also seek to prevent a rightward lurch on the court that would usher in a new era of conservative judicial activism. Now is the time for them to apply their leverage.
Sen. Susan Collins, R-Maine, one of the crucial votes, began to do so over the past week, consulting with President Donald Trump and saying Sunday on CNN's "State of the Union" that she "would not support a nominee who demonstrated hostility to Roe v. Wade." That takes a few potential nominees off the table.
Collins also urged the president to expand his list of possible picks beyond the one that conservative activist groups handed him during his 2016 campaign. That means considering more independent-minded people.
Collins voted to confirm Neil Gorsuch, Trump's first pick for the high court. She will have to be more exacting as she considers a replacement for Justice Anthony Kennedy than she was in judging the replacement for arch-conservative Justice Antonin Scalia.
As for the centrist Democratic senators, they are under intense pressure to oppose anyone Trump puts up. Democrats are understandably angry after Republicans refused to consider Merrick Garland, President Barack Obama's eminently reasonable pick to replace Scalia. GOP hypocrisy — refusing to consider an Obama nominee in an election year, only to push through a Trump pick in an election year — is disgusting. Republicans did more to politicize the judiciary in one move than anything they or the Democrats did leading up to it.
Yet entrenching that politicization through rote opposition to anyone Trump picks would not be in the interests of the bench or of the country. Doing so would make it even less possible for the Senate to ever again conduct a reasonable advise-and-consent process. It cannot become the case that the only time major judicial seats are filled is when the president and the Senate majority hail from the same party.
Senators do not have to ignore recent history. Rather, they should judge the individual whom Trump chooses with more stringent standards than would have been previously warranted. In the past, any well-qualified pick would have deserved support. But filling the Kennedy vacancy could flip the court from conservative to extremely conservative overnight, a result that would have been impossible except for the Republicans' dirty play on Garland.
If the centrists stick together, they can force the selection of a reasonable, mainstream judge in the mold of Kennedy or Justice Sandra Day O'Connor, who were both appointed by President Ronald Reagan. If the senators fail to use their leverage now, the result will be more politicization of the bench and a more extreme court for a generation.
The Washington Post