Supreme Court

Did the Alabama Special Election Increase the Odds of Justice Kennedy's Retirement?

If Anthony Kennedy would like to see his successor confirmed by the Senate, he might decide June 2018 is a good time to go.

|The Volokh Conspiracy |

Doug Jones' upset victory over Roy Moore in the Alabama Senate special election brings Senate Democrats one step closer to retaking control of the U.S. Senate. Once Jones is seated, Senate Republicans will only retain a narrow 51-49 majority in the chamber. This will undoubtedly make it even more difficult for Republicans to get anyhting done, and increase the chances that Democrats take over the Senate in the 2018 elections. But could this election result also affect the composition of the Supreme Court?

There has been rampant speculation over whether Justice Anthony Kennedy, the Supreme Court's swing justice, will retire next spring. Pepperdine's Derek Muller speculates that the Jones victory may have increased the odds. As Muller notes, if Democrats take the Senate, they are extremely unlikely to allow President Trump to fill a vacant Supreme Court seat. Ed Whelan concurs. This could bother Justice Kennedy. Whether or not Justice Kennedy likes the idea of President Trump picking his successor, he may like the idea of his seat remaining vacant for an extended period of time even less. This would mean the time is now.

I am also not sure Justice Kennedy would be particularly troubled by having the Trump Administration select his successor. Although Justice Kennedy is not as conservative as some of Trump's potential picks, I suspect he has been quite impressed by the overall caliber and qualifications of the President's appellate judicial nominations, including that of Neil Gorsuch, who worked for Kennedy on the Court. (District court nominations are another matter, but these are largely a product of negotiation and compromise with local Senators, who often elevate political or other considerations ahead of qualifications.) Justice Kennedy is also no doubt aware that several of his former clerks, including Judges Raymond Kethledge (Sixth Circuit) and Brett Kavanaugh (D.C. Circuit) are on the President's Supreme Court short-list.

So here's a prediction—a prediction worth no more than what it costs to access the VC on this paywall-free platform, but a prediction nonetheless. On June 26, 2018, Justice Kennedy announces the opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, striking a balance between free expression and non-discrimination principles. (June 26, it should be noted, was also the day upon which the Court announced its landmark gay-rights decisions in Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges—all of which Justice Kennedy authored.) Then, likely having satisifed no one but himself, Justice Kennedy will announce his retirement from the Court.

If I'm right, remember it. If I'm wrong, well, I can't exactly offer you your money back now can I?

NEXT: Why Won't the FDA Let Me Shove Chocolate Up My Nose?

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  1. Sounds reasonable… Assuming he means to retire, at least.

    He may also feel better about retiring with one less Republican in the Senate, reducing the odds that Trump could get a real fire breather confirmed.

    1. Trump breathes fire on twitter but his appointments are standard conservative issue.

      1. From your perspective and mine, perhaps, but from Kennedy’s perspective? I doubt it.

      2. What just a few years ago were standard and widespread beliefs (not even conservative) are now the dangerous and shameful bigotry of right-wing ideologues.

        1. That’s a standard tactic on the left: They count on people, with an assist from the news media, having the long term memory of a cricket.

          Repeal the ACA, for example, and bodies will be stacking up in the streets… even though things weren’t that bad before it was enacted. Good enough, in fact, that Obama had to lie about people getting to keep their policies if they liked them.

          They do it on all sorts of policies: They win some temporary gain, and then predict horrors if they lose it.

          1. Someone seems to have forgotten about “death panels.”

  2. “Once Jones is seated, Senate Republicans will only retain a narrow 51-49 majority in the chamber. This will undoubtedly make it even more difficult for Republicans to get [anything] done”.

    It will put significantly more pressure on that marginal vote.

    Protest votes may no longer be a viable strategy for differentiating oneself from the Republican herd.

    I’m looking at you, Rand Paul.

    If you want a future in the Republican party leadership, maybe even win the nomination for president, better think before you make yourself the difference between healthcare reform and nothing.

    Incidentally, Doug Jones is now the Susan Collins of the Democratic Party. If Susan Collins is reluctant to sign on to the establishment agenda for fear of alienating her Democrat inclined electorate, Doug Jones probably isn’t about to make a difference for single payer, gun rights, LGTBTQI+ rights, radical environmentalists, or pro-immigration people either.

    It might make a difference if there were a Democrat in the White House, where they could offer him a cushy to entice him to sell his electorate short, but that’s out of the question for the time being.

    1. Doug Jones won, albeit barely, in the most pro-life state while stating he was for abortion up until the moment of birth. He has a short tenure int he Senate, so calling him Susan Collins is generous. He’ll be out next election as long as McConnel doesn’t try to play games in the primaries again.

  3. Sooner he leaves, the better. I read the trascript of the Masterpiece Cakeshop oral argument. The lack of any legal standards, and the overall touchy-feelly, whose-rights-are-more-important character was appalling. It’s like asking my ten year old whether she prefers chocolate or vanilla ice cream.

    1. Though balancing rights is not bad in principal. Yeah, should he retire his style is something I won’t miss.

      Your ten-year-old sounds cool.

      1. Since this is a libertarian site, I can make a libertarian point here:

        You have to balance *positive* rights against each other, because they are claims on other people’s resources, and can come into conflict.

        Negative rights? No, you don’t have to balance them, they’re all capable of being 100% respected together, because they’re just a right to be left alone, and there’s no practical limit to how much the government can leave people alone.

        1. Could we start with curbing the drug warriors, muzzling the superstition-based micromanagement of certain medical facilities, whittling government surveillance and secrecy (instead of the Fourth Amendment), reducing military spending and avoiding preemptive invasions of the wrong countries, prohibiting torture (and perhaps holding torturers to account), diminishing voter suppression, and resisting calls for government to resume treating gays like dirt?

          1. You don’t ask for much, do you?

            1. He’s just citing some issues.

        2. s the right to pollute without government interference a negative right? Sounds like it from your definition.
          Is the right to clean air negative or positive?

          It is not only the government that doesn’t “leave people alone.”

    2. This is not about conflicting rights, classically understood. Any person, this baker included, has a natural right to live as he chooses, associate with whom he chooses, and transact as he chooses with consenting adults. No one has a right to use the police power to force another to transact, absent a voluntary agreement that creates an obligation.

      Natural rights, in the classical liberal tradition the founders applied to creating a constitution, can be applied equally to all. Unfortunately, the modern judiciary has engaged in verbal jujitsu to rationalize a system of positive rights, which necessarily creates many conflicts and tramples on the natural rights of us all.

  4. The issue in Masterpiece Cakeshop is that all three branches of the federal government have chosen to pretend that the legal doctrine of “equal protection” doesn’t mean what the words themselves clearly do.

    If Kennedy’s departure and eventual successor begin to change that, I’m for it — but with Jones elected, I fear otherwise.

    1. Interesting, can you elaborate?

    2. I can tell you’re well-versed on the legal issues by the fact that you seem to think the federal government is a party and that the Colorado statute in question uses the phrase “equal protection”. It isn’t (but appears as a friend of the Court), and it doesn’t. The law does talk about “public accommodation” and “discrimination” due to “sexual orientation”, and carefully defines each.

      The problem is finding a limiting principle to this law that comports to the United States Constitution: Specifically, the First Amendment.

      There is no question, among the parties or serious commentators, that Colorado has the authority to enact the law. The only questions are to what extent it can be enforced against a category of sincerely-religious merchants whose work is expressive, and what types of merchants may fall into such a category.

      1. “There is no question, among the parties or serious commentators, that Colorado has the authority to enact the law.” That’s actually the entire question.

        There is also the question of neutrally applied (which is where Justice Kennedy steered towards in his arguments which will mess with the what is and isn’t intolerant even more since it will be an individualized ruling against Colorado).

        But the legal question is in fact if public accommodation can require the absence of religious belief or if the right to religion extends to the work place in general. Per the Hobby Lobby decision, you would think this is an easy answer.

        1. “That’s actually the entire question.”

          No. As I noted, the question is of enforcement.

          “But the legal question is in fact if public accommodation can require the absence of religious belief or if the right to religion extends to the work place in general.”

          No. The Court denied cert on this question (to one Justice’s surprise during oral). They will decide the question before them.

          1. “No. As I noted, the question is of enforcement.”

            No that’s one of the sub questions that Kennedy veered down. The general question is about applicability of the law against religious freedom. Now if the USSC decides to narrow down to Colorado’s specific enforcement of the law, that is a possibility, but it does not exclude the more general question. If they reach a narrow result it just brings this case forward again in a few years, which may be Kennedy’s goal so he doesn’t have to contradict his other opinions.

            1. Actually the question is the law as applied to freedom of speech. There was a lot of talk about religion but Employment Division v Smith pretty clearly shuts that down (and it is not a liberal opinion that that Right of the Court is looking to overturn, it was actually written by Scalia and joined by Rehnquist and even more importantly Kennedy).

              The result will come down to whether they feel making the cake is expressive such that it qualifies as speech.

        2. Do conservatives claim that limitless (or expanding) special privilege for religious claimants is a libertarian aspiration? What is the libertarian position on superstition-based special privilege?

      2. You think it’s OK for a state to enact an unconstitutional law, threatening people with criminal charges if they don’t obey the law, as long as the state does not enforce the law?

        1. It’s always enforcement, or the threat thereof, that’s unconstitutional. Not mere enactment.

        2. Do you believe the Civil Rights Act of 1964 is unconstitutional?

          1. Do you believe that anyone who supports racial equality must conclude that the Civil Rights Act of 1964, or any other law designed to combat racial discrimination, is constitutional?

            Do you believe that the Commerce Clause, which gives Congress the power “to regulate commerce …among the several states…” was intended as a limitation on the power of Congress, or do you think the power of Congress was intended to be unlimited since any local commerce competed with or had at least an indirect influence over interstate commerce, therefore affected it, therefore was interstate itself (in which case what was the purpose of ‘among the several states’)?

            Do you believe that criticizing the reasoning of Wickard v. Filburn is conclusive proof of a racial animus?

  5. On the other hand, Kennedy may believe that if the Democrats take control of the Senate this will simply mean that the President will no longer be able to nominate someone like Gorsuch, not sympathetic to his LGBT constitutional revolution, but will be forced to pick someone more middle of the road, such as Merrick Garland.

    1. Merrick Garland was NOT middle of the road.

      1. True, but he is “more middle of the road,” if on the other side of the middle. Not the Sotomayor that they would prefer, but I could see the Democrats insisting on him if anybody. And such a choice would protect Kennedy’s legacy.

        1. Good luck getting Trump to agree to Garland. He is kind of part of the nomination process.

        2. Good luck getting Trump to agree to Garland. He is kind of part of the nomination process.

  6. Good predictions. On Masterpiece, I think Kennedy holds the cake can be speech – as any number of activities have been held to be speech by the Court. If I make you a cake in celebration of VC’s move from the WP, is that speech? If I create abstract art on canvas for the same purpose, is that speech? As someone who, once in awhile, has to eat my words, I think speech can be edible.

    There is an idea, rarely clearly stated, that speech for pay isn’t really speech at all. (This brings to mind the seemingly difficult question of, if prostitution were legal, whether a prostitute could discriminate.) Is a sign maker truly engaged in expressing himself? Maybe not. But can the government compel him? There is this undeniable nub, where a thing may not be speech per se but the right to forbear is protected. The act of compelling the creation (or display) of a thing can trample on speech rights, whether or not a person previously was doing or not doing a thing with free speech in mind.

    So then Kennedy looks to whether the anti-discrimination law satisfies strict scrutiny. Kennedy holds that forbidding discrimination based on a person’s identity is a compelling interest, but that the statute goes too far in compelling potential speech activity as it relates to things not inherent to identity. He would then need to distinguish sex discrimination situations where detrimental action was taken on the basis of pregnancy or non-adherence to stereotypes/ideals.

    1. I am not entirely sure how Kennedy closes the loop while addressing denial of other on-demand services related to a same-sex wedding that don’t qualify as speech (eg providing a venue). I think it can be done but I’m not sure how it is done with a clearly announced principle.

      Kennedy’s fair-weather friends will go ballistic, so I don’t know if dropping the mic on the anniversary of June 26 blunts any of the response.

    2. Yes, the cake could be speech. If he wants to put a cake in his window that reads “Trump stinks,” or “Taxed Enough Already,” the government cannot tell him he cannot display said cake. If he instead makes a cake that reads “No fags!” and refuses to serve homosexuals, he’s in trouble.

      1. Nothing in your response is actually responsive the argument I think Kennedy may adopt.

        1. My repsonse addresses when a cake may be speech, and when it isn’t. I had to answer that way because I have no idea how to respond to something that “may” happen.

  7. “in Masterpiece Cakeshop v. Colorado Civil Rights Commission, striking a balance between free expression and non-discrimination principles”

    Kennedy has created such a mess with free expression and non-discrimination by being impatient and not waiting for the political process that there is no way to actually balance these two items in today’s atmosphere. Presupposed victims prior to the ruling on Gay Marriage now act as the tormentors going after anyone who would dare uphold marriage as a sacramental rite. There is no balance.

  8. Eh, it’s fun to let your wishes author your predictions, but I’ve seen no evidence Kennedy has any intention of doing anything other than get carried out.

    1. ..on the shoulders of an adoring crowd.

      1. I don’t think Kennedy is in it for the glory. If he was his opinions wouldn’t be so dang muddy.

        1. Sometimes when there’s no real constitutional authority muddy is the only recourse.

          1. Wow, that’s a lame one. Extrapolating based one one data point should cause you to check if maybe you’re too eager to service your narrative.

            Or do you disagree that there are plenty of non-originalists vastly more clear then Kennedy?

            1. I wasn’t extrapolating. I was simply commenting on the reason for the muddiness of some of his opinions, such as the one in Obergefell, where, for example, he talks about rights which can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” Or he tells us how, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” Clear as mud.

        2. Muddy decisions are much easier to author than logically consistent ones.

          1. No argument here, Jesse.

            I may like some of Kennedy’s findings more than you, but I find his decisions at least as infuriating as you do. Maybe more, because he weakens his findings considerably with his intellectual laziness.

  9. Since the Masterpiece Cakeshop casewas raised, one of the things that struck me about the oral argument is that Colorado seemed to take a strange position that you had to write the same thing for one person as you did for another, but not a new message.

    Doesn’t context matter?

    Suppose a cake baker has written Happy Birthday a thousand times before. One day someone orders a Happy Birthday cake, then adds, “it’s for Hitler’s birthday. I am celebrating that tomorrow with my local chapter of the Nazi party.” Doesn’t it make a difference now that the birthday is specifically for one of the most evil men in history, rather than for some random person?

    1. Some argue that words are different. I think distinguishing symbolic speech and word speech has no basis in principle, although identifying expressive intent can be more obvious when words are involved.

      Some would also point out that the anti-discrimination statutes don’t touch the scenario you’re describing.

      A better example is that of a sign maker. He makes signs and banners for all occasions, including weddings. Whatever creativity is involved in his process, the word speech on the signs is not his own expression, though he writes it. If he refuses to make a sign that says “Bill & Ted Forever” can he be forced to do so?

      Some would say the government can make him write those words. I don’t think it terribly coherent to say he could be allowed to refuse service simply because his decorative skills involve letter characters, but not if he used frosting.

      1. Didn’t we have a case that already covered this? A t-shirt company refused to take an order for t-shirts celebrating gay pride. They were sued. The company won, largely because it would be forced speech. [IANAL]

        So while “some would say” may be true, it’s probably a very small “some” as even diehard liberals such as myself generally agree with this ruling.

    2. no. it would be the same expression. e.g., if a bakery sets up an automated kiosk, where customers can type in the message, and it automatically prints it in frosting on their cake, would the kiosk generating the message distinguish between “happy birthday” and “happy birthday”? no, it wouldnt. its the same operation, same output, same expression. humans just need to be replaced with automation already.

      anyway, a “gay wedding” wasnt mentioned in this case. and hitler fans arent a protected group in colorado.

  10. Might be of interest …

    http://www.slate.com/articles/…..lices.html

    *sigh* That makes me sad.

    1. Has Lithwick ever taken up US citizenship?

      She may be right about Kozinski, and I am not anti-immigration, but if you are going to set yourself up as an expert on the Supreme Court and the American Constitution, couldn’t you be bothered to take the citizenship test? The dual-citizenship prohibition has been effectively dropped.

      Foreign commentators on our politics bring an interesting perspective, but long-term permanent residents who can’t even vote here doing so strikes me as odd.

      1. Why is Lithwick’s citizenship relevant? It doesn’t change the facts of what she reports.

        If a Canadian citizen is robbed in the US does it not matter?

  11. Am I the only one that wished the gay community would have picked a lead petitioner that had an easier to pronounce name? “Obergefell” could lead us back down the DOW-bert versus dow-BEAR rabbit hole.

  12. Judge Kavanaugh would be a good pick.

    1. If you like stale authoritarianism, he’d be nigh-perfect.

  13. I always wonder whether these sorts of considerations take precedence over normal personal preferences, like a desire to stay on the job, or not.

    I guess it varies across individuals. Put this down as my great insight of 2017.

  14. Zorak: Space Ghost, Wonder Woman is at the front door. Batgirl is at the backdoor.
    Where do you go first?
    Space Ghost Wonder Woman is HOT!
    Zorak: Yeah! But Batgirl’s old man is Police Commissioner.
    Commissioner Gordon.
    So…when the old geezer retires…
    Space Ghost: Ooooo! Commissioner Space Ghost.
    Zorak: Exactly!

  15. I can’t see how Kennedy expands “expressive mediums” to cake baking with Masterpiece:

    1. The baker is not required to participate in the ceremony (unlike a photographer, singer, or celebrant)

    2. The cake is not easily associated with Phillips

    3. Unlike painting, singing, sculpting, or photography, cake baking is not inherently expressive….if it is, then anything that might be viewed as beautiful, landscaping, hair braiding, dress making, theater light design, etc must also be viewed as expressive.Thus to limit this explosion of what services could be denied, it makes sense to consider the function of the good or service. Does one sit around pondering the mysteries of the cake or is the cake’s primary function to be eaten? This distinguishes it from the painting, singing, sculpting, and photography.

    4. Phillips refused to bake the cake without even inquiring about any imagery (rainbows) or statements that might be pro-homosexual or same-sex marriage. So just the concept of a standard non-descript wedding cake that might require little to no customization was being denied. Phillips speech on a controversial matter was not being compelled.

    I would be shocked….shocked…..if Kennedy provides cover for this form of discrimination….where the impact on Phillips’ speech rights (and religious rights for that matter) is so attenuated. But I could be convinced otherwise.

    1. 5. Could any celebration be sufficient cause to refuse a bakery service? Or is the nature of a wedding celebration much different to distinguish it from an anniversary, birthday, or general part?

      There is also a privacy part of this that is concerning…..if I go into your shop and attempt to buy something, what business is it of yours what I am going to do with your product…be it a hammer, a floral setting, or a cake? If you are not being asked to participate, there is no direct linkage between the product and you, and you are not being made to unambiguously endorse the activity through imagery or writing, then I just don’t see why you should be given a veto power. Did Phillips make inquiries about couples who were previously divorced, atheists, or fornicating before marriage to see if he would be OK with “participating” in their weddings? Seems selective

      1. Tell that to the left who would like to hold gun dealers responsible for everything their customers do, even if the dealers follow all laws.

        I also find the argument that Phillips was willing to serve divorcees or fornicators unpersuasive. There is no rule that you must place equal weight on all tenets of your faith.

        1. “…willing to serve divorcees or fornicators unpersuasive”

          The observation about privacy is less a legal argument (hence not on my list of 1-5) and more a pragmatic gripe. Could a business that rented tables and chairs pull the same argument? They do not want to be seen as supporting a celebration that they feel is blasphemous? The attenuated link between the product and actual speech is where I think the majority will focus. I actually predict that this may get as many as 7 votes. YMMV

        2. “…willing to serve divorcees or fornicators unpersuasive”

          The observation about privacy is less a legal argument (hence not on my list of 1-5) and more a pragmatic gripe. Could a business that rented tables and chairs pull the same argument? They do not want to be seen as supporting a celebration that they feel is blasphemous? The attenuated link between the product and actual speech is where I think the majority will focus. I actually predict that this may get as many as 7 votes. YMMV

        3. “There is no rule that you must place equal weight on all tenets of your faith.”

          There’s also no rule that what one person considers a tenet of his faith is required to even be so much as trivia in another person’s faith, or even that all the tenets of a person’s faith have to be internally consistent. The fact that there are hundreds or thousands of different groups that call themselves Christian and consider many of the other groups that call themselves Christian not to be indicates to me that there’s no reason why any given Christian must automatically consider any given thing ‘sinful’ or any given response to that thing the correct “Christian” response.

          1. Exactly. This is purely about the insincerity of his beliefs, not the consistency.

    2. “1. The baker is not required to participate in the ceremony (unlike a photographer, singer, or celebrant)”

      Justice Sotomayor disagrees with you. From the transcript:
      “JUSTICE SOTOMAYOR: Then don’t participate in weddings, or create a cake that is neutral”

      “2. The cake is not easily associated with Phillips”

      Even anonymous speech is protected. And most art is difficult to associate with its creator, at least by the average viewer. When I look at a painting in a gallery, generally the only way I’m going to know who painted it is if there’s a little placard telling me.

      “3. . . . Does one sit around pondering the mysteries of the cake or is the cake’s primary function to be eaten? This distinguishes it from the painting, singing, sculpting, and photography.”

      I appreciate that you at least make an argument for why a cake is not inherently expressive. But isn’t the question whether a cake is inherently non-expressive?

      More importantly, your opinion of art seems a little high minded. A painting doesn’t have to be the kind of painting that one sits around pondering the mysteries of the painting to be art.

      “4. . . .So just the concept of a standard non-descript wedding cake that might require little to no customization was being denied.”

      No it wasn’t. According to the transcript all of his wedding cakes are custom cakes.

      1. 1. My argument is about attenuation. Sotomayor is liberally construing what “participate” implies. Does a chair rental business “participate” in a ceremony by renting chairs for the reception? This is materially a different level of participation then someone who must take photographs or video at the ceremony or reception.

        2. I’m arguing that the cake baker himself is not materially participating in the ceremony. An anonymous cake adds to the attenuation of how he personally is supposedly being harmed.

        3. Are you claiming that a landscaper also produces art…because neatly trimmed bushes are aesthetically pleasing? Can a landscaper refuse to do his art if he disagrees with the political lawn signs that you have on your property? You seem to imply “yes” because art is in the eye of the beholder. Hair braiding? Entree preparation? Teeth whitening? Where do you draw the line or is everyone an artist? My point is that some activities are more commonly referred to as expressive. You have gone no further in persuading that a cake has any special expressive meaning….I’ll leave that for you to struggle with…my opinion is that it does not.

        1. 4. This is misleading. Phillips has a catalog that shows his past cake designs. Nothing prevents someone from pointing to a cake and saying “I want that delicious heterosexual cake”. Also, custom cake could simply mean dimensions appropriate for the gathering. Absent any writing on the cake, can you describe for me how an opposite-sex-marriage cake differs from a same-sex-marriage cake? Again, with no statements on the cake…words or objects….we are left with decorative frosting…that says what exactly? What is it expressing….tastiness maybe?

    3. The Baker frequently delivers the cake to the reception and sets it up with the necessary tools for the cutting the cake ceremony. So the baker most definitely participates in the ceremony.

      1. Technically the ceremony was in Massachusetts…this was the reception in Colorado……does a distance and time separation add to or subtract from the attenuation if Phillips problem is same-sex-marriage? Phillips is not required to attend the reception…and has no more involvement than someone setting up tables at the venue…or should those people also get to opt out of the ceremony? Where does your logic lead?

      2. the janitor cleans the toilets at the venue beforehand, so is participating in the ceremony and should be able to refuse to do their job of mopping up urine if there is a risk he will prevent it from sullying the shoes of gay wedding attendees. oh, and the construction crew that built the venue. they most definitely participate. we need to protect these people with sincerely held religious beliefs. they can have no part in it!

    4. Cake baking is not expressive. Cake _decorating_ is expressive when it’s a customized design such as a wedding cake.

      What is the difference under the law between a gay couple ordering a wedding cake decorated for their marriage and a fundamentalist Christian ordering a cake for the after-church potluck decorated with Leviticus 20:13: “If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them”?

  16. The real issue is that liberals are not content for gay marriage to merely be legal. They don’t want anyone who disagrees with homosexuality to be able to participate in society.

    1. Oh heck, why stop there? Just claim that all liberals want to see everyone else sent to the gas chamber and really hit this hyperbolic baseball out of the park!

    2. The other real issue is that many authoritarian conservatives — particularly the superstitious ones — are bigoted toward gays. They pine for the “good old days” during which gays could not openly participate in society, with a few back alley beatings (by the police) for good measure.

  17. if Democrats take the Senate, they are extremely unlikely to allow President Trump to fill a vacant Supreme Court seat.

    With the number of seats that the Democrats have to defend that is very unlikely.

    1. You might be underestimating what Trump, Bannon, and the evangelicals could accomplish in a year.

  18. District court nominations are another matter, but these are largely a product of negotiation and compromise with local Senators, who often elevate political or other considerations ahead of qualifications.

    Nice to see Adler backtracking a bit from his “Trump’s judicial nominees are awesome” position. Of course here he is claiming that “hey, the bad ones (Here is another) are not Trump’s fault.”

  19. Here’s a set of circumstances that would almost certainly dissuade Kennedy from retiring: Trump fires Mueller and/or pardons everyone involved in the investigation. “Justice Kennedy concluded his career by giving a Supreme Court seat to a president with a manifest contempt for the rule of law.”

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