The presidency of Donald Trump has driven Democrats to various last resorts. Often enough, it’s been understandable.
But at least one of liberal America’s potential desperate measures compels Americans of a more conservative persuasion to confront one thing about Trump’s tenure they may eventually live to appreciate.
This particular situation has gotten so serious for progressives that Democrats running for president are vowing to attempt to pass a federal law that would safeguard a woman’s right to abortion.
“Three out of every four people in America believe … Roe v. Wade should be the law,” Sen. Elizabeth Warren declared at the New Hampshire debate earlier this month. “That means we should be pushing for a congressional solution as well … a national law to protect … a woman’s choice.”
She added: “States are heading toward trying to ban abortion outright, and the Supreme Court seems headed in exactly that direction as well … . [W]e can’t simply rely on the courts.”
Never mind whether legal abortion, which the Supreme Court declared a constitutional right 47 years ago, really enjoys near universal support at the same time it faces imminent peril. What’s mainly revealing here is the sight of progressives proclaiming that they “can’t simply rely on the courts” but must resort to “ a congressional solution” — a law enacted through representative institutions — to establish and preserve major social policies they cherish.
What an intriguing idea. What shall we call it? Democracy?
The fact, of course, is that progressives have been relying mostly on the courts, rather than on democratically enacted legislation, for controversial policy victories for many decades now — bestowing some unifying blessings on the nation (above all the blow against racial segregation in the Brown v. Board of Education ruling, 1954) and inflicting some lasting divisions (above all, in Roe v. Wade, 1973). But from banning school prayer and many other public religious observances to legalizing same-sex marriage, they have repeatedly changed the culture swiftly though the courts in ways that would have been harder, or at least taken longer, if they’d had to win over public support and pass laws.
So what has happened that suddenly progressives “can’t simply rely on the courts”?
To be more precise, Trump and Sen. Mitch McConnell have happened.
Ever since McConnell became majority leader of the U.S. Senate in 2015, the shrewd and flinty Kentuckian has worked tirelessly — critics would add ruthlessly — to engineer a transformation of the federal courts. He has boldly taken the offensive in a battle to control the judiciary that has raged between the progressive and conservative movements ever more fiercely at least since the Senate’s bruising 1987 rejection of the Supreme Court nomination of conservative icon Judge Robert Bork.
Recognizing that the Senate’s authority to confirm or block presidential nominees to federal judgeships is a profound power to shape American life and government for decades to come, McConnell first labored to obstruct confirmations of President Barack Obama’s nominees, the better to leave plenty of judicial vacancies for an eventual Republican president to fill.
The most prominent and embittering example was McConnell’s refusal to even give a hearing to Judge Merrick Garland, Obama’s nominee, in the last year of his presidency, to fill the seat of the late Supreme Court Justice Antonin Scalia.
Trump, for his part, announced as a candidate in 2016 his intention to collaborate with the Federalist Society, a conservative legal association that has recommended an abundant list of judicial candidates with impeccable credentials and solidly conservative judicial philosophies. Trump has chosen from those lists for judgeships at all levels — including his two Supreme Court nominees, Neil Gorsuch and Brett Kavanaugh.
The results of all this teamwork have been impressive, in every sense. The best evidence may be the alarm — sometimes combined with grudging admiration — that liberal legal observers express over what McConnell and Trump are accomplishing.
At last count, nearly 200 Trump nominees had been confirmed to federal courts, doing in three years “nearly as much to shape the courts as President Obama did in eight years,” writes legal analyst Ian Millhiser in a provocative and estimable piece on Vox.
“On the courts of appeal,” Millhiser adds, “the final word in the overwhelming majority of federal cases, more than one-quarter of active judges are [already] Trump appointees … .”
Millhiser does not welcome these facts. Ardently progressive, he laments that “there is simply no recent precedent for one president having such a transformative impact on the courts” and foresees a long, damaging siege of conservative court rulings stripping Americans of rights, hobbling regulatory agencies and sabotaging future Democratic presidents’ agendas.
But Millhiser, to his credit, acknowledges that Trump’s judicial impact will be all the more profound because the judges he has appointed, with the Federalist Society’s guidance, are not only conservative but strikingly well-qualified.
“[B]ased solely on objective legal credentials,” Millhiser writes, “the average Trump appointee has a far more impressive résumé than any past president’s nominees.”
Conservative and even moderate Americans will be pleased to hear that. And they may not be horrified at the prospect of courts keeping a tighter leash on administrative rule makers, reining in government by presidential executive order (as courts have done in multiple cases with Trump) and trailblazing fewer social experiments that voters have not seen fit to launch.
Indeed, to the extent Trump’s “transformative impact” on the courts means more support for settling cultural and political disputes by “pushing for a congressional solution” — leaving the people free to democratically pass laws to live by — and less often relying on the courts to know best, more than a few Americans may be content with it.
In a closely watched case last year, the Supreme Court upheld the constitutionality of a historic religious monument on public land. In an opinion agreeing that the Constitution does not prohibit the “peace cross,” Trump appointee Justice Brett Kavanaugh acknowledged that both sides to the dispute had “genuine and important” concerns. Then he noted that nothing prevented other decisionmakers from resolving the issue differently through political processes.
The state legislature and governor “could enact new laws,” Kavanaugh wrote, and remove the controversial monument if they thought that would best serve the harmony of their community.
“This Court,” Kavanaugh declared, “is not the only guardian of individual rights in America.”
What an intriguing idea.
D.J. Tice is at Doug.Tice@startribune.com.