Of SCOTUS and the Law of Unintended Consequences

Associate Justice of the Supreme Court Anthony Kennedy has announced his retirement, effective July 31 of this year. The implications are profound. First, for the potentially good one.

It is possible, though not guaranteed, that President Trump will nominate and the U.S. Senate will confirm a person who has a due regard for the Constitution. That would be great. Here’s the problem: it seems a virtual guarantee, given the current Republican majority in the Senate, that whoever he nominates will be confirmed — even if that person is a less than enthusiastic supporter of the Constitution. So, if you are a conservative (or a libertarian for that matter), I would not recommend assuming this is a done deal.

Now, on to the less good.

When Barack Obama was President of the United States, Senate Majority Leader Harry Reid was able to institute the “nuclear option.” Back in 2016, CNN put it this way:

Senate Democrats are eager to make Donald Trump pay a political price for nominating staunch conservatives to fill out his Cabinet, hoping to exact revenge for the GOP’s stubborn opposition to President Barack Obama’s nominees.

But there is little they can do about it — and some top Democrats are now coming to regret it.

That’s because Senate Democrats muscled through an unprecedented rules change in 2013 to weaken the power of the minority party to filibuster Cabinet-level appointees and most judicial nominees, now setting the threshold at 51 votes — rather than 60 — to overcome tactics aimed at derailing nominations.

With the Senate GOP poised to hold 52 seats next Congress, some Democrats now say they should have thought twice before making the rules change — known on Capitol Hill as the “nuclear option.”

“I do regret that,” said Sen. Chris Coons of Delaware, a Democrat who voted for the rules change three years ago. “I frankly think many of us will regret that in this Congress because it would have been a terrific speed bump, potential emergency break [sic], to have in our system to slow down nominees.”

I’m sorry. How did no one see this coming? Well, one person did. I don’t like him, but it appears Chuck Schumer lobbied against the change.

Here is my concern. It is a fact that no party stays in power forever. This means that any precedent established, any policy set, any law passed, will at some point in the future be applied and/or enforced by those with whom disagree — often those with whom you disagree profoundly and on a fundamental level. It seems clear to me, as we contemplate the replacement for Justice Kennedy, that this idea is alien to many politicians and to many Americans (“the People”) in general. As a nation of citizens, seemingly unable to think more than 2 weeks ahead, we have largely elected politicians who suffer from the same deficiency. While I have hopes re: the nomination of a Constitutional absolutist, I have far less hope regarding our willingness to abandon our focus on short-term gain and our tendency to elect those who both pander to it and who have the same short-term focus. Shortsightedness is not good.

Note: I should add that I can easily see the same thing happening if the Democratic and Republican balances in the Senate had been reversed over the last 20-30 years. The vast majority of them are short-sighted idealogues, regardless of party. Charles Krauthammer was correct: “Whenever you’re faced with an explanation of what’s going on in Washington, the choice between incompetence and conspiracy, always choose incompetence.”