Earl Ofari Hutchinson
There is absolutely no mystery about who Trump will pick to replace retiring SCOTUS justice Anthony Kennedy. The pick will be another Antonin Scalia type. The only nuance to this may be the gender. It could be a woman, Amy Coney Barrett. She’s on his short list of picks and he interviewed her. He might see a woman pick damping down some of the righteous and very justified furor over him as a serial sexual abuser. But back to Scalia. Trump repeatedly gushed over him before, during, and after his election. He also had a kind word or two about Scalia’s judicial clone, Clarence Thomas.
Trump hasn’t left anything to chance on his SCOTUS pick. He got two dozen names of the best Scalia judicial look a likes from the ultra-conservative Heritage Foundation and Federalist Society. Those on the list were hard line opponents of abortion, same-sex marriage, voting rights expansion, union protections, and increased federal regulations. But that’s not all. Conservative groups learned the hard lesson from the bruising, and ultimately losing, confirmation fight over Robert Bork in 1987. They vetted Trump’s judicial list very carefully.
They have impeccable legal, education, and judicial credentials. Their opinions in appellate cases have been careful and thoughtful, with absolutely no hint of anything extreme or inflammatory. They give their Democratic critics and opponents almost nowhere to go with attacks. They’ve done something else. They factor in age. Since the court is a long game, most of the hard-right SCOTUS possibilities are in their 40s. Trump and his hard-right conservative backers are fully aware that the court’s power to be de facto legislators could last for decades. Presidents and congresspersons come and go, but justices can sit there until death if they choose. Scalia and Thomas are proof of that. Scalia sat for 30 years and Thomas has sat on the bench for more than a quarter century. Trump’s team even boasts that his next pick could be there for forty years.
Barrett and the other four or five judges that Trump interviewed from his “short list” are exactly as he said; that’s in the mold of Scalia and Thomas. Said Trump before he hand-picked Neil Gorsuch to the High Court a year ago,” This list is definitive and I will choose only from it in picking future justices of the United States Supreme Court.”
The Kennedy replacement could be just the start. If re-elected, Trump almost certainly could have the chance to pick one or two more justices to replace the two aging liberal judges on the court. They also will not just be garden variety strict constructionists, but activists and influencers on the bench. They will be judges who won’t just base their rulings on the standard conservative playbook, but will cajole, hector and badger other judges to toe the hard-conservative line in their rulings. And who will have the gall when it suits their purpose not even to try and hide it.
During the 2016 presidential campaign, Vice President Mike Pence made the Trump-Scalia axis official when he vowed to a campaign crowd in Michigan during the campaign that Trump’s High Court pick would hit the bench with the practically sworn duty to slam down the curtain on Roe v. Wade. Pence didn’t stop there. He repeatedly vowed that Trump would appoint strict constructionists in his appointments and not just for a Scalia type judicial hit on abortion rights.
Pence reflected the brute truth that the Supreme Court has since the 1960s been the political jewel in the crown for staunch conservatives. The court became the right’s main prize during the tenure of Chief Justice Earl Warren. The right-wing routinely railed at the Warren court for its liberal rulings upholding and expanding civil and voting rights, labor, environmental and civil liberties protections, abortion, and reining in the corporate abuses. Conservatives viewed the high court as an unapologetic advocate of activist liberalism and loathed it for it. The far right repeatedly screamed for Warren’s head with signs that popped up along the highways throughout the South and the Heartland, “Impeach Earl Warren.”
The right plainly wanted more judges on the bench who would rigidly toe the ultra-conservative line. The court became even more important as a political tool for the conservative remake of the country when it became clear that just having more conservatives in the Senate and the House was not enough to roll back the gains in civil, women’s and labor rights of the past half century. Democrats even as the minority in Congress could obstruct or outright kill legislation through the filibuster.
The right correctly sees the Supreme Court not just as a neutral arbiter to settle legal disputes. It is a lethal weapon to skirt congressional gridlock and serve a dual role as a judicial and legislative body. This means scrapping the long-standing tradition on the court where justices based their legal decisions solely on the merit of the law, constitutional principles and the public good, and not ideology. Trump was as good as his word on picking another Scalia for the high court when he picked Gorsuch. He’ll be as good as his word again when he picks another Scalia.
Earl Ofari Hutchinson is an author and political analyst. He is the author of the forthcoming Why Black Lives Do Matter (Middle Passage Press). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.