If you think that the Democrats are in a total panic over the coming confirmation of conservative Trump Supreme Court nominee Neil Gorsuch, you are missing the even bigger story about the Court.
Gorsuch is being nominated to replace conservative justice Antonin Scalia, who passed away suddenly in February 2016. So Gorsuch would not “tip” the court, which already is tipped somewhat to the conservative side. He would just maintain it like it is, which is 5 conservative or conservative-leaning justices to 4 liberals.
Under this makeup there have been many conservative victories. But liberals also have won a few significant victories like gay marriage and Obamacare because Republican-appointed justices don’t always vote the conservative line and can tip a major decision to the left.
How does this work?
Well, it is important to remember how our modern courts work.
We should not expect Supreme Court justices appointed by Republican presidents to always vote conservative, or Democrat appointees to always vote liberal. We should always expect these justices and other judges to rule based on the law. And that is where we get the great divide between Republican-appointed and Democrat-appointed justices and judges.
Republican-appointed justices respect the law and make decisions based on the law, which means that their decisions could go either way depending on the case, but usually or often tilt to the right.
Democrat-appointed justices, on the other hand, make decisions based not on the law but on their own political bias. And thus on important cases before the Supreme Court Democrat-appointed justices never vote with conservatives even when the law suggests that the conservative approach is the correct one.
This puts our conservative/populist cause at a distinct disadvantage. For 50 years liberal judges have been acting as ‘activist’ judges who “write law rather than interpreting it” and virtually never dissent from liberal orthodoxy no matter what the law says. This is how liberals have changed the nation profoundly by getting decisions through the courts that they can never get through the ballot box.
In other words, it is vastly easier to get one judge to tip a decision or write a decision that shifts the law to the liberal side rather than to win an election on the issue and then change it through legislation, which takes much longer and may not even work. This is how homosexual marriage and abortion have been codified in federal law.
Thus the real panic among the Democrats begins not with Gorsuch but with two elderly and very left-wing sitting Supreme Court justices, both appointed by Bill Clinton, who could be replaced by Trump if they die in office or are forced to retire by sickness.
One is a very frail 83-year-old Ruth Bader Ginsburg, who already has suffered from two different types of cancer; and the other is Stephen Breyer, who is 78 years old. Ginsburg even has been seen nodding off during two public speeches, which is a very troubling image.
If either dies, or is forced to retire by bad health, then the Court would lose a guaranteed liberal-only vote on important cases and would tilt strongly to the right with a Trump replacement, with six conservative or conservative-leaning justices and only three liberals. If both Ginsburg and Breyer should retire or die under Trump it would be an even bigger catastrophe for Democrats.
Now here is another truth about the Court over the last 30 years: Three of the Republican-appointed justices have turned out to be “swing” voters or even somewhat liberal to start with. Reagan-appointed justices Anthony Kennedy and Sandra Day O’Connor ended up being not at all reliably conservative. It was Kennedy who threw the 2015 gay marriage vote by agreeing with the four liberals.
David Souter, who was appointed by George HW Bush in 1990 and who retired in 2009, was a liberal who actually made few conservative decisions. He even retired right after Obama was elected, so as to insure a liberal replacement. What a weasel.
Even ‘conservative’ chief justice John Roberts, appointed by George W. Bush, does not necessarily vote conservative, as he did not on the critical Obamacare case.
If both sides had justices who were sometimes “swing” voters then the sides would balance out. But that does not happen. Liberals are never “swing” voters on important cases.
Nikitas3.com has wondered for several years now why Ruth Bader Ginsburg did not retire when Obama was president so as to allow Obama to pick her replacement. After all Ginsburg was diagnosed with cancer many years ago and she is the oldest justice.
My theory is two-fold – first that Ginsburg is a classic leftist who never wants to give up power. That is why so many Democrats die in office, compared to the much smaller number of Republicans who do.
Second Ginsburg certainly expected Hillary Clinton to easily be elected and then re-elected and so did not think that her retirement or death over the next 8 years would pose a problem for the liberal side of the court.
Now the tables have turned significantly and this is where the drama begins. If Ginsburg even stumbles and falls down, injuring herself, her career could be ended, never mind the cancers and other maladies like simple old age.
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