Colorado Politics

The Gazette: Kennedy’s retirement creates crisis for the left

As Donald Trump pitched his presidency to The Gazette’s editorial board in July 2016, we pressed him on potential appointees to the U.S. Supreme Court. He would enter the job with a vacancy to fill. Given the ages of other judges, more appointments were likely.

Tuesday’s retirement of Justice Anthony Kennedy creates a second void for Trump to fill. For Democrats, the announcement creates a nightmarish reminder of the 2016 election’s long-term consequences.

“Any Supreme Court nominees would be approved of by the Federalist Society? Is that for sure?” a Gazette board member asked Trump.

We wanted to know whether Trump had a system in mind for nominating judges or whether he would wing it. The Federalist Society, a nationwide organization of legal scholars, tries to preserve an original view of the Constitution. Their legal doctrines often conflict with progressive agendas, but not always.

“All will be coming out of the Federalist Society,” Trump told us. “One hundred percent out of the Federalist Society … That’s a good thing. Because a lot of people who are conservative, they were afraid. That is the biggest single issue in this campaign … If I’m not chosen, you’re going to have super liberal judges. And, you know, this president is going to pick, it could be four or five. It’s probably going to be three, which is a lot. It’s actually going to be four. But it could be five. You’ll never get the country back. The country will be gone.”

Trump had a trump card to lull unenthused conservatives who questioned the flamboyant former Democrat’s dedication to their values. Supreme Court majorities steer the country’s fate for decades, generations, centuries or until the republic’s demise.

Nonetheless, fervent “never Trump” conservatives insisted the court was no good reason to get behind Trump.

“The Supreme Court is Not a Sufficient Reason to Vote for Trump,” exclaimed a headline in the conservative National Review, five days after Trump’s visit with The Gazette.

“There simply is no reason to believe that the same Trump who has contradicted himself on amnesty for illegal immigrants, abortion, NATO, and much else, will stick to his assurances on this,” Tuttle wrote in National Review. “Recall that this is the same man who – in February – suggested nominating his sister, who once wrote a decision defending partial-birth abortion.”

Conservative David Frum, a former contributing editor for our sister publication The Weekly Standard, also questioned the logic of supporting Trump on a basis of court nominees. In an Atlantic article headlined “The Supreme Court Isn’t a Sufficient Reason to Vote for Trump,” Frum argued “Trump commitments are notoriously worthless.”

The theme caught on, with the Los Angeles Times publishing two conservative law professors under the Aug. 16 headline: “Filling Supreme Court vacancies isn’t a good enough reason to vote for Trump.”

“No one should rely on his vague promises,” wrote professors John Yoo of UC Berkeley Law School and Jeremy Rabkin of the Antonin Scalia Law School at George Mason University. “He has already flip-flopped on numerous core issues, such as the minimum wage, tax rates and entitlement reform.”

Trump’s first judicial nomination put Boulder’s Neil Gorsuch on the Supreme Court, a move that pleases the Federalist Society and others seeking strict intepretation of the Constitution.

No one can seriously question the speed with which Supreme Court appointments affect the country’s long-term trajectory.

Kennedy, a moderate swing voter, maintained a court balance. His retirement gives Trump the chance at a reliably conservative majority. Progressives should hope Trump finally betrays his base, proving prophetic his never-Trump critics on the right.

The Gazette editorial board

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