Kennedy Retires. Will Roe Go Down? Not So Fast

First, a few stipulations:

(1) I’m very much in the pro-life camp. I’m opposed to abortion, and support its criminalization. People who have abortions–provided they are doing so out of choice and not compulsion–are murderers, as are any parties who perform or assist in them. The repeal of Roe v. Wade would trigger great celebration in my household.

(2) (1) is the key reason why I voted for Trump over Hillary in the 2016 election.

(The other reason: from my experience in government, I saw it imperative that we do everything possible to hold off the onslaught of the Marxist SJWs that would complete the hijacking of federal government if Hillary won. But that is a different discussion.)

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With that out of the way, I am thrilled to see Supreme Court Justice Anthony Kennedy retiring. Originally billed as a conservative pick by Reagan, Kennedy became a total cuckold in 1992 in the Planned Parenthood v. Casey case, when he joined Sandra Day O’Connor and David Souter to betray the unborn by refusing to overturn Roe.

His leftism extended to the Lawrence v. Texas case, which opened the door to the infamous Obergefell v. Hodges decision that redefined marriage.

Good riddance, Mr. Kennedy. Don’t let the door hit you in the rear-end…

This obviously creates a wonderful opportunity for President Trump to nominate a solid conservative to the Court, which currently has four hard liberals (Kagan, Sotomayor, Breyer, Ginsburg) three hard conservatives (Thomas, Alito, Gorsuch), and one mostly conservative Chief Justice (Roberts) who got too cute by half with ObamaCare and refused to reverse himself when he had the chance.

A hard conservative would tilt the court to the right, and this would seem to spell the doom for Roe v. Wade.

This is why the left is acting like Armageddon is near: they know that their right to murder babies is in the greatest peril since 1992.

Making matters worse for them, this is a midterm election year.

What does this mean?

(1) With the retirement of Kennedy, the Democrats–who depend on the abortionista base and the labor unions for money–now must go all-out to take back the Senate.

If they fail here, it will be a worse defeat for the Dems than the Reagan elections. This is because Trump may get not just this pick, but potentially two more Court picks, thus creating the most conservative Supreme Court in the last century.

That means the GOP will likely keep the House, as the Dems must pour their resources into Senate races, as they have several vulnerable Democrats who are up for re-election as well as a few vulnerable Republicans they hope to challenge. If the GOP holds serve, it will be a major victory.

Having said that,

(2) Trump still will face a major battle to confirm his next SCOTUS pick.

Currently, Republicans have a 51-49 edge in the Senate. Two Senators–Sens. Susan Collins (ME) and Lisa Murkowski (AK)–are pro-abortion and could easily scuttle any nominee they don’t like, and with little consequence to their re-election prospects. If they flip, Trump won’t have the votes.

Meanwhile, the two Senators from Arizona–John McCain and Jeff Flake–are very anti-Trump. McCain is on his deathbed and could easily vote down any Trump pick just to stick it to Trump. Flake, also a Trump-hater, could also vote it down out of spite.

That’s 4 potential GOP votes against a Trump pick coming out of the gate.

If Trump wants to get his pick confirmed, he will need to appeal to Red-State Democrats who are on the bubble.

That will be a very tall order.

I’m old enough to remember when President Reagan nominated Robert Bork for SCOTUS. Six Republicans voted against Bork. The biggest embarrassment came from my home state at the time–Pennsylvania–when Arlen Specter (R-PA) attacked Bork. When he abandoned Bork, five other Republicans on the bubble also followed suit. The Bork nomination died, 58-42.

From there, Reagan nominated Douglas Ginsburg. His nomination never made it to a vote, as his past marijuana use created too much controversy.

Reagan would then settle on Anthony Kennedy. And we know what happened from there.

Trump and McConnell have their work cut out for them.

My prediction: there will be no vote on a SCOTUS pick until after the election.

(3) Even if Trump gets his pick confirmed, it does not guarantee that Roe v. Wade will die.

My cynicism on this stems from two observations.

First, recalling Planned Parenthood v. Casey.

At the time, the conservative majority on the Court seemed poised to kill Roe. O’Connor unexpectedly sided with conservatives in the 1989 Webster case, hinting that she might be up for sticking the fork in Roe. And Bush had appointed two conservative Justices–Souter and Thomas–who, at the time, were living up to their billings.

A 7-2 vote to kill Roe seemed plausible, and would have been poetic, as a 7-2 vote created Roe in the first place.

But in the Casey decision, O’Connor could not get herself to vote down Roe. Souter and Kennedy would join her.

What seemed like a 7-2 death-knell for Roe turned into a 5-4 affirmation of it.

Currently, you have 3 justices who will almost certainly kill Roe: Thomas, Alito, and Gorsuch. I put Roberts on the bubble only because of his misstep on Obamacare.

For Roe to fall, you need at least one woman on the Court who will vote to kill it. It will take a woman to get the other 4 conservatives on-board.

None of the current woman on the Court will do that. Ginsburg, Kagan, and Sotomayor are hardcore pro-aborts.

There is a woman on Trump’s short list: Amy Coney Barrett. A charismatic Catholic and mother of 7.

If Trump nominates Barrett, you will know he is serious about kicking Roe‘s ass.

And if she gets in, I would rate the chances of Roe going down at about 70%. She will have the chance to be Deborah and Jael, in one fell swoop.

But that’s a big IF, for the reasons stated. If he nominates Barrett, the Bork hearings will be a walk in the park in comparison. Democrats will be in full meltdown.

Second, I am not sure if the ranks of the Church are serious about killing abortion.

I say this from experience. I have been in many churches and have given presentations on various angles of the pro-life cause. I was a counselor at a crisis pregnancy center. I was a speaking director for a maternity home. I spoke in a lot of otherwise conservative churches. I’d say that the vast majority of my abortion-minded clients were otherwise professing Christians. (I only recall one who was an Atheist.)

Here’s the thing: the Church has a mother lode of family jewels under the surface. Many families that would identify as pro-life on paper, have a pregnancy-abortion scandal under their tent. They may agree with you about the reality of abortion, but they want it there for their kids “just in case”. These are the types who voted for Clinton in 1992.

Combine that with a cadre of otherwise conservative ministers who have demonized Christians who supported Trump over Hillary–yes, Thabiti Anyabwhile, I’m talking about you–and you have a critical mass of confusion among the Body. It also doesn’t help when popular evangelical authors like Beth Moore and Jen Hatmaker and Rachel Held Evans are not forceful on matters of life and, in the case of the latter two, have jumped off the cliff for every SJW cause under the sun.

(And no, I’m not saying that ministers need to tell people who to vote for; it is, however, perfectly appropriate for a minister to say that particular issues are of very significant importance, and that those who vote with those issues in mind are not selling out to the devil.)

So, to make a long story short, Kennedy’s departure is a great opportunity. But victory for pro-lifers is far from certain in this matter.

11 thoughts on “Kennedy Retires. Will Roe Go Down? Not So Fast

  1. The left is already quite apoplectic, invoking Robert Bork’s last name as a verb regarding President Trump’s upcoming nominee.

    Even if Justice Kennedy’s replacement is a solid constitutional conservative and the Supreme Court eventually votes to overturn Roe v. Wade, that won’t make abortion illegal. It would simply send the matter back to the states. In some states business as usual would likely prevail. In other states abortion would remain legal to a certain extent but with substantial restrictions. There are other states where few, if any, abortions would be performed.

    My hunch is that any case potentially overturning Roe v. Wade may have to wait until there is a stronger pro-life majority on the court. If Ruth Bader Ginsburg retires or dies during President Trump’s first term and he’s able to successfully replace her, I think Roe v. Wade will have a much better chance of being overturned. Perhaps Obergefell v. Hodges will be reversed as well.

    • What I see happening*: Roe will die in two, perhaps three, stages.

      First, they’ll declare that states can ban abortions outright after the first or second trimester. As big of a change as that sounds like, that still will be a small change, as 90% of abortions are performed in the first trimester.

      Then, once SCOTUS has a more-entrenched majority, they’ll knock down Roe altogether, allowing states to legislate as they please.

      *This assumes that Trump gets his solid conservative majority on the Supreme Court.

  2. ”Beth Moore and Jen Hatmaker and Rachel Held Evans are not forceful on matters of life and, in the case of the latter two, have jumped off the cliff for every SJW cause under the sun.”

    Can’t believe those heretics actually have influence.

    • I hear ya. But a LOT of women follow Hatmaker and Evans. I shake my head every time I see someone gushing over their tweets.

      Beth Moore is mostly fluff–her earlier stuff wasn’t bad, but she’s too watered down of late–but I’d stop short of calling her a heretic. But she IS on the edge of the cliff.

        • Jay – i heard BM speak many, many years ago, probably mid to late 90’s, and i remember she caused a discord inside me. some of it i could define, and other parts i could not.

          i am very leery of women in ministry, especially where they make significant money. whether it’s true, i don’t know … just read that both her daughters and their husbands work at her ministry … so i’m assuming her ‘ministry’ supports three families?

          whole thing poses many more questions than answers for me … and enough uncertainty for me to stay away from her.

  3. One major difference between this hearing and the Bork hearings is that the nuclear option is now in play. I don’t think it would be wise to nominate Barrett (however interesting that would be). It would be better to nominate someone like Gorsech, as that is the kind of candidate you can get 51 Republican votes on. However, all you need is 51, and it doesn’t matter what the Democrats say. While I don’t agree with that, it was the Democrats who changed the filibuster rules to permit setting a precedent in which only a majority is necessary to break a filibuster. Even though it was done so that the Democrats could force their legislation down everyone’s throat, it may, in a Haman-like irony, be the very gallows that will end up hanging the democrats’ policies to their death.

    As you said, it is probably best to do this in steps. Get a conservative on the court who will uphold the constitution as it was intended. That can be used as a very powerful argument against Roe to begin with. Then, focus on November and the Senate races. The Democrats are simply becoming void of any message other than “I hate Trump,” which is not going to cut it when it comes to the American people asking why they should vote for their candidate. There is a good chance that there could be one more SCOTUS judge retiring (either literally or figuratively, probably more the latter) in the next two years. Then, with more room to breathe in the Senate, it will be easier to confirm someone like Barrett. The hyperventilating that would come from the left would be the last dying breath of Roe v Wade, as the gallows of their own making strangle the life out of the Democrats’ horrible legislation from the bench.

    What really bothers me is that Trump is not the kind of person to play it safe. He could nominate someone like Barrett who would subsequently *not* get confirmed, and that would force him to nominate someone like Kennedy who is much more moderate. The result would be like a box of chocolates – you never know what you would get out of it. If Trump does not proceed wisely here, this could be another botched opportunity at overturning Roe. The problem is that “Trump” and “wise” are not two things I generally associate in my mind. But, Trump *has* surprised me before, so anything is possible.

    The other thing to watch out for is bullying and violence from the left. I don’t know if you have been following the story of Maxine Waters calling for the harassment of Trump officials, but it has lead many political pundits to think that, if Roe were ever overturned, you could see mob scenes all over the US, not just breaking things and damaging property, but bringing about mass bloodshed that could lead to the violent assassination of a conservative SCOTUS judge, or even President Trump himself. While not all leftists support such behavior, and there are even some who openly condemn it, there are others who simply will not condemn such actions, and many, like Waters, who could promote it. If I am Trump, and I know the overturning of Roe is imminent, I am not only getting the riot police ready in every major US city, but I am also getting the military ready to take out these mobs the minute someone’s life is in danger.

    So, no, Roe is not dead, but its life has just been seriously threatened by an assassin that has a legitimate opportunity to take it out. Whether that assassin will proceed wisely, though, remains to be seen.

    • Democrats and their allies in the media are already applying tremendous pressure on Sens. Susan Collins and Lisa Murkowski, moderate-to-liberal Republicans who support abortion rights, to vote “no” on any nominee who appears ready to overturn Roe v. Wade. Sen. John McCain, who’s battling brain cancer, hasn’t been in the Senate for months and his presence can’t be counted on. I wouldn’t be surprised if Sens. Bob Corker and Jeff Flake, both retiring “never-Trumpers,” also vote “no” simply out of spite.

      On the other hand, 10 of the 26 Democratic senators facing re-election this year are running in states which President Trump carried in 2016. At least four of them, Sens. Joe Donnelly, Heidi Heitkamp, Joe Manchin and Bill Nelson, could be persuaded to support a GOP nominee in order to boost their own re-election prospects. Sen. Doug Jones, who defeated Roy Moore last winter and faces Alabama voters again in 2020, could also be persuadable in order to boost his “moderate Democrat” bonafides.

      It’s Saturday evening and I’m posting a comment on a blog. What a swinging bachelor life I lead – NOT.

  4. Meanwhile, the two Senators from Arizona–John McCain and Jeff Flake–are very anti-Trump. McCain is on his deathbed and could easily vote down any Trump pick just to stick it to Trump. Flake, also a Trump-hater, could also vote it down out of spite.

    I called it. Flake cucked out and went recommended a DNC delay tactic; aka a “one week” FBI investigation.

    Kavanaugh is done. Character assassination will be complete.

    This kind of crap is why Trump won.

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