Justice Anthony Kennedy announces retirement from Supreme Court; reaction and analysis from ‘The Five.’
Justice Anthony Kennedy announces retirement from Supreme Court; reaction and analysis from ‘The Five.’
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On the roster: What are Dems to do about the SupCo? – I’ll Tell You What: Viva el Swampo – House GOP a shambles on immigration – Crowley gets Cantored – He has no chill
WHAT ARE DEMOCRATS TO DO ABOUT THE SUPCO?
It has not been a fun week for Democrats on matters of jurisprudence.
The Supreme Court upheld the president’s travel ban, the policy great grandson of an audacious campaign promise to establish a religious test for entry to the United States barring Muslims until our government can “figure out what the hell is going on.”
Then, the court struck down lower court rulings that allowed public-sector unions, a bulwark of the party, to deduct dues from state and local government workers’ paychecks. This will be a damaging blow to Democrats nationally but with particular pain in 22 mostly-Democratic states that collectively employ millions of teachers where compulsory union dues are a fact of life.
And then, the coup de grâce.
Justice Anthony Kennedy, 81 years of age and 30 years on the high court bench, announced that he was stepping down.
Now, based on the two decisions mentioned above, you might not think that Democrats would have any particular affection for Kennedy, who concurred with the majority in both cases. But with President Trump armed with a list of super-conservative potential replacements and Republicans in narrow control of the Senate, Democrats know that the court is about to get substantially more conservative.
Chief Justice John Roberts, who might have been something a conservative ideological outlier on the court 30 years ago, is likely to end up as the new fulcrum on the court. Roberts’ views on reading the Constitution and the appropriate powers of the judiciary are 180 degrees from the liberal glory days of the Earl Warren and Warren Berger courts that delivered some of the greatest policy victories for the American left of the 20th century.
So we certainly understand why Democrats are dismayed at the news. What we wonder, though, is what they are prepared to do about it?
Based on how successfully Senate Majority Leader Mitch McConnell shepherded the nomination of Neil Gorsuch through the process last year, it will be very hard for Democrats to block the appointment. The president is unlikely to deviate from the list of judges, who, like Gorsuch, seem to have genetically engineered in a basement laboratory at the Federalist Society for maximum conservatism and longevity with minimum controversy.
That list was the blood pact he made with conservative Republicans to maintain their backing in 2016 when his campaign was hemorrhaging and his not likely to break it now. So without the chance of one of the president’s sometimes seemingly random picks of someone he met at work, Democrats will be forced to fight on the grounds of jurisprudence.
That means there’s a good chance that the nominee won’t just get all the Republicans, but perhaps as many as four Democrats. A vote for a Trump Supreme Court nominee would be a very good way for a red-state Senate Democrat to show their cooperative nature.
Now, we don’t know exactly when the nomination will ripen, except for that McConnell said “this fall.” Does that mean before the election in order to apply more pressure on Democrats like Joe Manchin and Heidi Heitkamp or after the election to provide more incentive to Republican voters? That probably depends on the Senate calendar, the response to the nominee and what McConnell thinks will be most helpful to his prorates of remaking the court and expanding his party’s majority in the Senate.
Experience tells us that the Democrats’ opposition will likely amount to a lot of speechifying and fundraising – especially by the considerable numbers of senators now positioning themselves for 2020 runs – and probably not much more. When you’re dealt a losing hand on the Supreme Court in the post-Bork era in which confirmations are party-line affairs, about the best you can do is make some noise and raise some cash. And once it’s over, you move on.
But what might happen is a potentially bigger deal.
Demand for disruptive resistance is intensifying in the Democratic base. And the matter of this appointment – which is probably correctly seen as a threat to the Warren court’s decision forbidding state laws barring women from elective abortions – will be met with calls for extraordinary tactics: talking filibusters, efforts to blockade unrelated legislation, etc.
These things will likely be no less successful at keeping the nominee off the court, but will reinforce the larger effort to delegitimize the process and the court. Still smarting from the Republicans’ successful obstruction of then-President Obama’s 2016 pick to replace the late Antonin Scalia, Democrats are especially unwilling to accept business as usual on Supreme Court appointments.
(Relatedly, does any decision in recent Washington history currently look like a bigger bust than Harry Reid’s decision to ditch the supermajority threshold for presidential appointees?)
This nomination may prove to be a watershed moment legally, yes, but also for Democrats as a party. If the party’s base demands that all of Trump’s actions – even ones that any typical Republican president would undertake, like this appointment – we haven’t seen anything yet when it comes to political siege warfare.
THE RULEBOOK: A LOAN, NOT A GIFT
“The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in independence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands.” – James Madison, Federalist No. 37
TIME OUT: WHEN TIME IS LITERALLY MONEY
Smithsonian: “Uh oh. Your garbage disposal is broken. Time to call the plumber, and shell out for a couple hours of service, right? What if there was a different way? What if, instead of calling in a professional, you could simply call a plumbing-savvy neighbor with a bit of time on his or her hands. In return for helping out, they’d get a ‘time credit’ to spend in the neighborhood. They could redeem it for, perhaps, a home-cooked meal, or two hours of gardening help or babysitting. The concept is known as ‘time banking.’ It’s a form of alternative currency—instead of using cash, community members can trade skills and services. An hour of time spent equals one time credit. It’s an old idea, with roots in the 19th century labor reform movement. Modern time banking dates to the early 1980s, when law professor Edgar Cahn established it as a way to build community and meet social services needs in an era when the social safety net was being shredded. Today, many cities and regions across the U.S. and beyond have their own time banks.”
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Trump job performance
Average approval: 41.8 percent
Average disapproval: 55 percent
Net Score: -10 points
Change from one week ago: down 3 points
[Average includes: Gallup: 41% approve – 55% disapprove; CNBC: 41% approve – 47% disapprove; Quinnipiac University: 43% approve – 52% disapprove; USA Today/Suffolk University: 43% approve – 51% disapprove; CNN: 41% approve – 54% disapprove.]
Control of House
Republican average: 41.6 percent
Democratic average: 48 percent
Advantage: Democrats plus 6.4 points
Change from one week ago: Democratic advantage down 1.6 points
[Average includes: Gallup: 48% Dems – 43% GOP; USA Today/Suffolk University: 45% Dems – 39% GOP; Quinnipiac University: 49% Dems – 43% GOP; CNN: 50% Dems – 42% GOP; Monmouth University: 48% Dems – 41% GOP.]
I’LL TELL YOU WHAT: VIVA EL SWAMPO
This week, Chris Stirewalt joins Dana Perino from the site of tomorrow night’s Florida Gubernatorial Debate in Orlando. The duo discusses travel woes, road stories and the surprises coming out of Tuesday night’s primaries. Plus, Dana answers mailbag questions and Chris tries to overcome Sunshine State trivia. Disclaimer: This podcast was recorded prior to the announcement of Justice Kennedy’s retirement. LISTEN AND SUBSCRIBE HERE
HOUSE GOP A SHAMBLES ON IMMIGRATION
Roll Call: “House Republicans’ legislative attempt to find consensus within their own party on the divisive issue of immigration failed on the floor Wednesday, with the chamber overwhelmingly rejecting their so-called compromise bill, 121-301. The outcome was predicted Tuesday as a late amendment that was negotiated over the weekend did not convince enough hesitant members to support the bill. The amendment was left out of the final bill. A last-minute public endorsement from President Donald Trump on Wednesday morning also failed to sway members, many of whom had complained about him sending mixed messages on the bill. Trump’s tweet Wednesday captured his earlier private views that he supports the bill as well as his previous tweets that Republicans were wasting their time on legislation that can’t pass the Senate, putting a different spin on the latter. … The compromise bill was negotiated by members representing all sides of the various factions in the GOP Conference and Republican leaders in recent weeks. But some of the negotiators had maintained concerns throughout the process.”
CROWLEY GETS CANTORED
Politico: “Rep. Joe Crowley’s stunning loss has left House Democratic leadership scrambling for answers — and has left-wing, Bernie Sanders-aligned activists feeling emboldened. Fewer than 30,000 votes were cast in the Democratic primary in New York’s 14th District, but the race has already rocked the political world from Queens to Capitol Hill. Crowley, the fourth-ranking Democrat in the House, was defeated Tuesday by a 28-year-old, first-time candidate and member of the Democratic Socialists of America. The future of the House Democratic conference is suddenly jumbled, and potential 2020 candidates are already linking themselves with giant-slayer Alexandria Ocasio-Cortez and her liberal platform.”
Grimm flops – NY Post: “Staten Island Republicans won’t be putting the con back into Congress. Voters on the island decisively rejected ex-Congressman Michael Grimm’s bid to return to the US House in Tuesday’s primary. Incumbent Rep. Dan Donovan turned back Grimm’s challenge, giving him an overwhelming 28-point margin of victory. With 90 percent of the precincts reporting, Donovan maintained an insurmountable 64-36 percent lead over Grimm, who is a convicted tax cheat. Donovan’s win puts a large feather in the cap of the borough’s GOP establishment, which came out hard for the longtime Staten Island pol — and against the convicted-tax cheat.”
Mittness level: 73 percent – Salt Lake Tribune: “Mitt Romney hardly broke a sweat on his way to capturing the Republican nomination in Utah’s U.S. Senate race, according to unofficial results Tuesday, earning 73 percent of the vote. Romney’s opponent, state Rep. Mike Kennedy, R-Alpine, drew only about one of four votes counted by Tuesday night. Late-arriving by-mail ballots will continue to be tallied in coming days. ‘Well, it looks like our team won the primary,’ Romney said to a cheering crowd. The Associated Press called the election for Romney at 8:24 p.m. and Romney and his wife, Ann, delivered brief remarks at 8:40 p.m.”
Colorado Dems move left with Polis pick – Denver Post: “The Colorado governor’s race is set: Democrat Jared Polis will face Republican Walker Stapleton in a November election in which President Donald Trump, marijuana and big money are expected to dominate. The two candidates easily won their respective nominations in Tuesday’s primary election, each defeating three rivals with campaigns that appealed to the party’s most ardent supporters. Polis, a five-term Boulder congressman, would become the nation’s first openly gay man elected governor if he succeeds, and his win Tuesday represents a sharp leftward shift that will test whether Colorado is a true blue state. Stapleton, the two-term state treasurer and Bush family relative, is competing to become only the second Republican elected governor in 44 years and aligned himself with Republican firebrands to win the race.”
Jealous? Yes. – Baltimore Sun: “Former NAACP chief Ben Jealous won Maryland’s Democratic primary for governor Tuesday, promising to deliver a progressive agenda that makes college free, legalizes marijuana and raises the state’s minimum wage to $15 an hour. Bolstered by support in the Baltimore region, spending from outside groups and an aggressive union-backed turnout machine, Jealous emerged from the six-way primary as Democrats’ bet to take on popular Republican Gov. Larry Hogan in November. His victory over fellow front-runner Prince George’s County Executive Rushern L. Baker III, who was backed by the state’s political establishment, demonstrated the growing influence of the progressive wing of the Maryland Democratic Party. His win was part of a wave of victories against establishment candidates in state government.”
McMaster wins S.C. governor runoff – [S.C.] Post and Courier: “Gov. Henry McMaster spent the primary campaign telling voters South Carolina was in good shape, and he was the experienced candidate to keep the winning streak going. The governor, a quintessential Southern politician with silver hair and Midlands accent, stood down challengers who said he was part of a corrupt and wasteful system in Columbia and not conservative enough to win a race that he’d craved for years. McMaster won the Republican governor runoff Tuesday against political newcomer John Warren, a Greenville business owner and Marine veteran who self-financed his campaign while billing himself as a political outsider.”
Bolton reaches agreement with Kremlin for Trump-Putin summit – WaPo
Trump pushes GOP to eliminate filibuster rule – Politico
New poll shows Democrats leading in NJ-11 – Monmouth University
Oklahomans approve use of medical marijuana – NewsOK
AUDIBLE: FACT IS FACT
“[Mitch McConnell] wants to be thought of as an effective party politician, and he is an effective politician. Ask me, ask Chuck Todd, ask anyone.” – Vox senior correspondent, Matthew Yglesias wrote in his piece on the Senate majority leader published today.
FROM THE BLEACHERS
“Chris, your explanation of today’s Supreme Court ruling in regards to how Trump’s former campaign comments concerning immigration did not taint the recommendations of legitimate federal agencies could also be applied to explain how the bias of the DOJ and FBI did not taint the conclusion of the Inspector General that subsequent investigation actions of the DOJ and FBI could not be described as biased, perhaps even the ultimate findings of the Mueller investigation whatever the conclusions might be. The Supreme Court made it clear today that the existence of bias in government actors did not establish an automatic rejection of either the travel ban or the special counsel. Go back and reexamine the insight you shared this morning on Fox, and see how your words make this parallel application. Give this some ponder and decide if you want to be the first to draw this parallel.” – Dr. Tom Sharp, Lincoln, Neb.
[Ed. note: Too late, Dr. Sharp. You just did.]
“I enjoy your reports. Today’s report has one sentence that sums up a major problem today (and truth be told, for many years). ‘It also means political peril for lawmakers, many of whom were surely unaware of the provision when they approved the tax plan.’ Big government creates this. Each member of congress has a significant staff (which we pay for) that can create massive amounts of reports/info/propositions, etc. Obamacare was a perfect example – passed before it was read. Give each member of congress a staff of 5 or less and watch the reduction in garbage produced and disseminated.” – Joe Wickersham, Pattaya, Thailand
[Ed. note: Over-long, over-complicated legislation is indeed partly a byproduct of the abundance of staffers in Congress today. Legislation is worked out at the staff level and then knitted together at the end of either the recommendations or disapprovals of committee staffs. I certainly understand the argument from lawmakers who say that they haven’t read a bill of more than a thousand pages. Under the system it exists, that’s not how it’s supposed to work. Legislation is built piecemeal but voted on as a single unit. But one of the reasons that Congress has become unable to address important questions is this very piecemeal approach. In an era of social media connectedness and hyper-partisanship Congress is no longer able to do what it used to and hide or logroll key provisions. What’s necessary now is to have forthright debates on important issues and then vote. I credit Congress in these past two weeks for actually having votes on immigration, a dangerous subject for politicians. But that’s what we need more of: Straight forward votes on difficult subjects. And ultimately, staff size is not the problem there. Lawmakers love complexity because they think it gives them somewhere to hide.]
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HE HAS NO CHILL
WREG: “An accused refrigerator thief made a mad dash for the interstate in Horn Lake [Mississippi]. A driver who nearly collided with the fast driving suspect caught all of the action on camera. ‘I could hear the sound of the refrigerator dragging on the concrete,’ driver Ken Salmon said. The suspect was clearly in a hurry, so much so that he completely ignored a stop sign and careened into traffic. ‘He had his arm out the window holding this mini fridge,’ Salmon said. Horn Lake police confirm they got a call about someone stealing a fridge from the Home Depot on Interstate Road, just after 2:30 Monday afternoon. ‘It’s probably the dumbest theft I can think of,’ Salmon said. ‘Who steals a fridge and says, ‘Oh, it won’t fit in my car?’’ But the suspect refused to be outdone by the fact that he didn’t have the right ride.”
AND NOW, A WORD FROM CHARLES…
“The Constitution, on the other hand, is a document that speaks. It defines concretely the nature of our social contract. Nothing in our public life is more substantive.” – Charles Krauthammer writing in the Washington Post, Jan. 7, 2011.
Chris Stirewalt is the politics editor for Fox News. Brianna McClelland contributed to this report. Want FOX News Halftime Report in your inbox every day? Sign up here.
Chris Stirewalt joined Fox News Channel (FNC) in July of 2010 and serves as politics editor based in Washington, D.C.