The Nuclear Land Mine Option

Thursday, May 11, 2017

At The Hill is an article about what the "nuclear option" invoked in the Gorsuch confirmation might mean down the line, given recent speculation that Justice Anthony Kennedy might retire as early as June. Law professor Jonathan Turley notes that the new rules for confirmation of Supreme Court Justices pave the way for the appointment of much less "moderate" justices in several ways:

The greatest problem for liberals with this self-inflicted wound is not the change in the numerical threshold but the political reality for confirmation. The filibuster rule gave political cover for Republican senators in justifying their opposition for nominees who were too far right. They could claim that they personally wanted such a radical change but that the filibuster rule required them to compromise. Now that cover is gone.

They can easily appoint a reliable conservative and would have to be open about their personal preference for a moderate in opposing a Trump nominee. The same is true for Trump. He pledged a hard-right conservative and there is now no serious barrier (or excuse) preventing him from fulfilling that pledge.
The immediate aftermath of the rightward lurch that can easily occur on the court is that two areas "dangling on a single vote" are in the crosshairs: legal abortion and gay rights.

Turley rightly notes, however, that "the majority of voters might not like the territory acquired in the wake of a conservative breakout on the court." His analogy of the changes to the confirmation process -- initiated by the Democrats and completed by the Republicans -- to multiple World War I mines is far more apt than the usual analogy to a nuclear bomb: The full ramifications cannot be known or controlled by the mine-layer.

-- CAV

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