The Midterm May Determine Trump’s Next SCOTUS Pick

The Briefing, Vol. VI, Issue 24

This week:

  • Midterm election may shape the Supreme Court
  • Roby the latest Republican to suffer for dissing Trump
  • Grimm’s comeback has Republicans worrying in New York

Supreme Court: At the moment, there is a very tenuous 5-4 conservative majority on the Supreme Court. The recent and very narrow decision upholding religious freedom for business owners illustrated just how delicate that balance is.

Justice Anthony Kennedy, who as rumor has it could announce his retirement any day, has a propensity to wobble between the liberal and conservative wings of the court. This has made him the most powerful jurist in America for some time, and it’s anyone’s guess whether he’s willing to give that up and give President Trump a clean shot at replacing him with a Republican Senate majority that can confirm his successor.

That would require Kennedy to announce his retirement very soon, so that the Senate has time to consider Trump’s nominee.

That’s not the only possibility for a retirement, either. Although it would have less immediate effect, and it’s a more remote possibility, Justice Clarence Thomas could also decide to call it quits before it becomes more complicated for Trump to replace him. Again, it would have to be soon.

As the fourth-oldest justice at age 69, after 26 years on the court, Thomas might look to Trump to appoint a younger conservative in his place, perhaps guaranteeing that a conservative sits in his seat until perhaps 2048.

Thomas was appointed at age 43. The most recently appointed justice, Neil Gorsuch, was 49 at the time. Judge Amul Thapar, mentioned as a possible Trump Supreme Court pick, turned 49 in April. Sen. Mike Lee, R-Utah, another possible pick, just turned 47 last week. Justice Samuel Alito is only a year younger than Thomas, but he’s considered far  less likely to retire after only a decade on the court.

Then again, there’s no good way of predicting what justices will do. It’s widely assumed that neither of the older liberal justices — Ruth Bader Ginsberg (age 85) and Stephen Breyer (age 79) — will retire while Trump is in office. But it isn’t impossible. 

But again, the outcome of any retirement or death of any justice that doesn’t happen very soon is going to depend on the 2018 Senate election. Any Supreme Court appointment that takes place after this year faces the uncertainty of a potentially hostile Senate.

The recent changes to Senate rules, which Democrats initiated in 2013 and Republicans recently expanded, make it much easier for any president to get his nominees through with a bare majority. But the majority is a requirement, and it isn’t a guarantee for Republicans. A Democratic majority could do to Trump what the Republicans did to President Obama in the final year of his presidency, refusing to vote on his nominee. It was their right — and likewise, it would be Democrats’ right to block it.

Conservatives have not been this close to a true majority on the Supreme Court at any point in the modern era. This is the most important reason, by far, that the 2018 election will be so important to Trump’s presidency. For all the Republicans who voted for Trump just because of the issue of judges, it remains the most compelling reason for them  to vote this year.

House 2018

Alabama: The Yellowhammer State continues to surprise.

Rep. Martha Roby, R, a relatively uncontroversial officeholder at the national level, was forced into a runoff last week. Nearly everyone agrees that this is a consequence of her having been critical of President Trump at key moments. After the release of the Access Hollywood tape in October 2016, Roby had stated she would not vote for Trump. People are now pointing to this decision as the reason she only got 39 percent of the  vote last Tuesday.

Bobby Bright, the Democrat whom Roby defeated in 2010, has been reincarnated this year as a Republican Trump supporter. He just forced Roby into a runoff that will take place in July. Although this Montgomery-area seat was once competitive given the right sort of Democrat, the winner of the GOP runoff will be the prohibitive favorite to go to Congress next January.

This episode shows once again just how dangerous it is for any Republican officeholder — at least in those states where Trump is popular — to step out of line and speak against him.

California: Democrats avoided a disaster last Tuesday, but their performance in California doesn’t support the idea that a massive Blue Wave is coming.

Democrats are eyeing seven seats in the Golden State that Hillary Clinton won but which are currently represented by Republicans. And they avoided being locked out of any of those seats last Tuesday, as might have happened if Republicans had finished in first and second place in the primary.

But Republicans, despite a larger-than-ever disadvantage in party registration (they now comprise only about a quarter of the state’s voting population), successfully got their gubernatorial candidate onto the ballot in November. They also recalled a Democratic state senator and replaced him with a Republican — a pretty big deal, considering that state Senate districts in California are bigger than congressional districts.

However they feel about the age of Trump, Republican voters turned out, and Republican candidates finished first in the top-two primaries in all seven of the targeted congressional districts. That doesn’t mean the Democrats can’t win or can’t retake the House, but it’s a reminder that they’re a long way from showing their victory is a sure thing.

New York-11: A new poll confirms what insiders in New York have been saying for nearly a month: Ex-con and ex-Rep. Michael Grimm is leading incumbent Rep. Dan Donovan in the Republican primary for the only Republican-held House seat in New York City.

Granted, many respondents in this poll were asked the question poll before President Trump endorsed Donovan. But Grimm’s comeback attempt as a mega-Trump-booster probably puts this Staten Island-Southwest Brooklyn seat into contention, at least against the right Democrat.

Democrats are highly likely to nominate Max Rose, who is not exactly an A-list candidate but isn’t the bottom of the barrel either. His staunch pro-abortion stance and early NARAL endorsement could be an obstacle for some voters in the district. His fundraising hasn’t exactly been impressive. But he is a post-9/11 combat veteran, and that carries some weight in a district where the military and law enforcement are given immense respect. Can that plus a very flawed opponent, who pleaded guilty on tax charges, send the Democrat to Congress? We may get an answer to that in November.

The primary is June 26.

Senate 2018

New Jersey: Sen. Bob Menendez, D, won his primary last Tuesday. But what’s noteworthy is that he underperformed rather dramatically against a completely unknown opponent who raised and spent less than $5,000 — so little that she wasn’t even required to file with the Federal Election Commission.

Menendez, accused of taking bribes from a doctor convicted of a massive Medicare fraud scheme, beat the rap in court. A hung jury declined to convict, and the Justice Department declined to retry him, in part because the Supreme Court has in recent decisions made corruption cases much harder to try successfully.

So yes, it’s Jersey, but you have to wonder. Republicans nominated the self-funding outsider Bob Hugin, who is going to have the resources to hammer away at Menendez as corrupt until election day. Menendez’s approval is absolutely in the toilet, and a number of Democratic leaners may just leave their ballots blank rather than vote for someone they believe to be a crook.

Yes, it’s a longshot hope for Republicans — and Democrats have shown they’ll break the rules if necessary to get Menendez off the ballot if it actually looks like he’s going to lose.

But New Jersey could easily become a sleeper race in the 2018 election. Yes, the Garden State hasn’t elected a Republican senator in more than four decades. But if someone like Ted Stevens can lose in Alaska because of a corruption trial, it isn’t unthinkable that someone far less established, like Menendez, could lose in New Jersey.