KEVIN LEININGER: Would Americans be fighting over the Supreme Court if they hadn’t allowed it to become too powerful?

Pro-abortion and anti-abortion protestors rally outside the Supreme Court. The prospect of overturning Roe vs. Wadehas drawn added attention to the nomination to replace retiring Justice Anthony Kennedy. (AP photo)
Kevin Leininger

By the time you read this President Trump should have nominated a replacement for Anthony Kennedy on the U.S. Supreme Court, setting up what is expected to be an especially bitter and close confirmation battle in the Senate. But as the conservative Campus Reform group illustrated last week, some college students didn’t feel like waiting for a name — or even a gender — before condemning the selection.

“He’s quite, you know, extreme in his views,” said one student at New York University.

“It’s all over the news that he’s, he’s like, uh, racist and s–t,” said another young scholar.

It’s easy to mock such smug cluelessness, but the hysteria it represents is no laughing matter because it reflects the degree to which the democratic process has been ceded to nine appointed-for-life justices, vesting the outcome with such an unhealthy degree of importance that people on both sides of the debate are willing to do or say almost anything to come out on top.

It’s fitting that abortion is fueling much of the current angst because its 1973 Roe vs. Wade decision, which discovered a long-overlooked right to abortion lurking in the Constitution’s penumbra, epitomizes the problem. Contrary to much of the recent commentary, abortion would not suddenly go away even if the court were to reverse its Roe decision. The issue would simply return to the 50 state legislatures, with all the political messiness and diversity of outcomes that implies.

A constitutional amendment could change that one way or the other, of course, but that process is even more cumbersome. Amendments must be proposed by two-thirds of both houses of Congress or by a constitutional convention called for by two-thirds of the state legislatures, then ratified by the legislatures of three-fourths of the states. But the last amendment was ratified in 1992.

It’s so much easier to let the courts do democracy’s heavy lifting.

Except that’s not really democracy at all. The fact that we’re still arguing over the legality of abortion illustrates the danger of making such momentous decisions in such a non-democratic way, just as the Supreme Court’s 5-4 decision upholding same-sex marriage in 2015 did not end the debate about gay rights. Contrast that approach to slavery, which contrary to popular opinion was abolished not by Lincoln’s Emancipation Proclamation but by the 13th Amendment.

Despite Trump’s campaign promise to nominate pro-life judges, a repeal of Roe seems unlikely. With 51 seats in the 100-member Senate, Republicans can afford few defections if they hope to confirm Trump’s nominee. John McCain is absent while being treated for cancer, while Susan Collins of Maine and Lisa Murkowski of Alaska — who are being lobbied by Democrats to vote “no” — have said they would have reservations about any attempt to undue Roe. On the other hand, Republicans are pressuring red-state Democrats up for re-election this year — including Indiana’s Joe Donnelly — to vote “yes.”

It was not always like this. Three decades ago Supreme Court confirmations were mostly scholarly and polite examinations of temperament and legal philosophy, with Senators of both parties granting some latitude to presidential preferences. Then in 1987 Sen. Edward Kennedy, D-Mass., insisted that nominee Robert Bork’s America “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution.” Thus “Borked,” Ronald Reagan’s nominee was defeated by a resounding 58-42 vote.

“The nomination changed everything, maybe forever,” Tom Goldstein, publisher of the SCOTUSblog, told NPR in 2012. “Republicans nominated this brilliant guy to move the law in this dramatically more conservative direction. Liberal groups turned around and blocked him precisely because of those views. Their fight legitimized scorched-earth ideological wars over nominations at the Supreme Court, and to this day both sides remain completely convinced they were right. The upshot is that we have this ridiculous system now where nominees shut up and don’t say anything that might signal what they really think.” The irony is that Trump might not be president today if not for conservatives’ desire to thwart liberal control the court.

Still, those students can’t really be blamed for not caring about a high-stakes but intellectually dishonest confirmation fight or even the identity of the judge being considered. They’re simply the embodiment of that line sung by the great philosopher Groucho Marx: “I don’t know what they have to say, it makes no difference anyway. Whatever it is, I’m against it!”

Maybe the sentiment was funnier in 1932, when it seemed a little more sarcastic, and a lot less true.

This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. Email Kevin Leininger at kleininger@news-sentinel.com or call him at 461-8355.

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