In recent Trump cabinet nomination votes, the Senate's Democratic moderates have seemed willing to go along with the president's choices, perhaps giving some indication as to how they might approach Trump's Supreme Court nominee. The opinions expressed in this commentary are exclusively those of the author.
Justice Anthony Kennedy's retirement is setting off a momentous confirmation battle for President Donald Trump's next Supreme Court nominee that is certain to consume the Senate, inflame partisan tensions and shape the outcome of the midterm elections. For liberals, it is devastating.
"While liberals have been able to pick off a number of crucial victories in years past on hotly contested matters, they will nearly always fall short in the future without Justice Kennedy on the bench now".
"This is not the first time the Court has been wrong, or has allowed official racism and xenophobia to continue rather than standing up to it. History has its eyes on us - and will judge today's decision harshly", the ACLU tweeted.
He has cast the deciding vote in a number of historic cases, including the high court's groundbreaking decision in 2015 legalising gay marriage, a five-to-four decision for which he wrote the opinion.
In a 5-4 ruling in Epic Systems Corp v Lewis, the court ruled that employers may require employees to waive their right to participate in a class action or class arbitration as a condition of hiring. But he refused to vote to overturn Roe v. Wade when he had the chance in Casey, and he cast a deciding vote against the restrictive Texas laws at issue in Hellerstedt.
During October oral argument in one partisan gerrymandering case, he expressed concern that the court's reputation would suffer if it started weighing in on partisan gerrymandering because the public would see the justices as favoring one party over the other.
Prominent on that list are Judges Thomas Hardiman of Pennsylvania and William Pryor of Alabama, seriously considered for the seat eventually filled by Justice Neil Gorsuch, and Judge Brett Kavanaugh, who serves on the federal appeals court in Washington, DC.
"For constitutional conservatives, that's not what it's about".
That's because, beyond misconstruing what Republicans said in 2016 about holding up Supreme Court nominees in an election year, Democrats don't have any procedural recourse to stop Senate Republicans from approving President Trump's pick.
Stephen Bannon, who as chief White House strategist was an architect of the travel ban, said that the court's ruling vindicated Trump and his Administration after receiving a year and a half of attacks from the political left over the policy.
But McConnell, who has never cared much about charges of hypocrisy, made clear that he intends to push ahead with a vote in the fall, putting the ball back in Democrats' hands. Without Kennedy this isn't going to happen, and these limits on capital punishment might be overruled.
"The Supreme Court ruling was a tremendous victory for this country".
But Trump's selections for the court have been largely influenced by the staunchly conservative Heritage Foundation, meaning their positions on key issues like Roe will be thoroughly vetted to meet conservative priorities.