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Kennedy’s Retirement, Trump’s Replacement Could Trigger a Constitutional Crisis

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In February of 2016, longtime Supreme Court Justice Antonin Scalia died. Days later, Mitch McConnell and his GOP declared they would not confirm any of Obama’s Supreme Court picks until after the November 2016 elections. Still, Merrick Garland was Obama’s nominee for SCOTUS in 2016, and, as promised, for eight months, Mitch McConnell and his fellow Republicans proudly refused to confirm him. That strategy worked for the GOP and saw Trump nominee Neil Gorsuch up for confirmation. Democrats quietly fought it, but the GOP changed the rules and used the “nuclear option,” in which they could declare a confirmation with a simple majority. In all fairness, the Democrats had previously enacted a similar option after watching the relentless obstruction of Obama’s nominees by the GOP for five years.

Now we have learned Supreme Court Justice Anthony Kennedy will step down in July. The GOP has already announced plans to confirm a nominee by the fall. Senate majority whip John Cornyn (R-Tx) told the Democrats they can’t change what’s about to happen and hinted that they’ll use the “nuclear option” and go straight for a simple 51-50 majority. “They can’t block it. There used not to be filibusters of judges until the George W. Bush presidency, and now all the filibuster activity and precedents have been overruled, so we are looking at 51 to confirm or 50 plus the vice president. I’m optimistic we’ll be able to get this done,” Cornyn stated.

At a rally in Fargo Thursday, Trump said, “Justice Kennedy’s retirement makes the issue of Senate control one of the vital issues of our time — the most important thing we can do.” The GOP understands a conservative/Republican controlled SCOTUS could mean repealing decisions on affirmative action, LGBTQ rights, and abortion, while shaping future constitutional law to reflect conservative ideology.

Democrats immediately called for the same reasoning McConnell used to refuse a nominee for confirmation in 2016 – that they needed to wait until after the election so the people could be heard. But the GOP stated that because that was a presidential election and this is a midterm, it’s not the same, and, let’s face it, they wouldn’t care anyway. They have no problem being hypocritical. In my opinion, they have no problem laughing at the constitution and the job they swore to do. They did so by flat-out declaring they would not confirm any of Obama’s SCOTUS picks for confirmation in 2016. It was a literal declaration, and one that McConnell later recalled as “one of [his] proudest moments.” It was a refusal to do their job until they could get a conservative nominee.

I feel we entered a constitutional crisis when this happened, and the fact that we haven’t addressed that more ardently is astounding to me. But with the new GOP in power, watch out. Loopholes, policy changes, lies, breaking international law, exiting agreements all over the world – this isn’t a party that cares about honesty or keeping their word. Any sort of call for McConnel to follow his own standard, lest he be hypocritical, matters to him not at all. This is NOT a party that follows rules, even their own. They do what they have to do to win, to get what they want. Do you really expect that Trump and McConnell and the GOP leadership and spokespeople, who are absolutely fine with lying to the American public and world leaders, who have found every edge they can get around, every technicality that turns a scandal or a problem into a near miss, every way out of anything they need, to follow the constitution to the letter of the law?


So, here’s my nightmare. This is what I have imagined with various elements differing, but with similar results, since the election. Now, I see things happening all around me that scare
me even more, variables and set-ups I couldn’t have imagined, various ways that this could all come true. But here we are, and all the building blocks are there. We have everything we need for an authoritarian regime.

Imagine this scenario:

Despite the fact that only one Republican may be enough to block the confirmation of the GOPs SCOTUS pick, it somehow doesn’t happen. Maybe everyone in the GOP is loyal. Maybe everyone in the GOP is scared, or feels threatened. Or, maybe they just find a way to change the rules again – they’re really good at that. So, we end up with a new Justice of the SCOTUS. Likely he’ll have been handpicked by McConnell and Trump and Jeff Sessions. Likely he’ll be a white, very conservative male. Likely he’ll profess to be a Christian. Likely, he’ll be against free reproductive choices for women. Likely, he’ll be pro-gun, pro-corporate, and have a history of racial bias somewhere in his life or career. This kind of SCOTUS choice caters to the base of “fans”, also known as voters, that the Trump administration and GOP love to lock into a rigid voter base, and sometimes whip into a frenzy. If this type of SCOTUS Justice doesn’t seem realistic to you, remember that all this pretty much describes Jeff Sessions, and he’s now the head of the DOJ.

So, we get this conservative male Justice in office, and now there’s a conservative majority loyal to the GOP. First on the GOP list for SCOTUS, maybe even before the midterms: repeal Roe vs. Wade. It’ll be a tough one, but they’ll need it for the “pro-life” voter block, as they’ll become even more of a dedicated and guaranteed voter base. The repeal will draw huge protests, but, likely, they’ll pass laws that will somehow deal with those pesky protesters, and Roe vs. Wade will be gone. Choice for women will be over and their reproductive healthcare will be restricted. Gerrymandering and voter suppression will be wildly enacted all over the country in favor of the GOP, and they don’t even have to vote on the gerrymandering again, as SCOTUS just voted that gerrymandering is fine in Texas, likely opening the door for more nationwide. One more thing we might get before midterms is some work by Trump and the GOP (with approval by a loyal Supreme Court), to restrict the free press. Our president and his staff regularly express disdain for the “mainstream media,” Trump has called them “the enemy of the American people,” and he’s threatened to revoke broadcasting licenses of so-called “fake news” purveyors. The recent Sinclair media merger means conservative, pro-Trump news will reach more households in the US. Outlets like Fox, Sinclair, and Breitbart might be given preferential treatment. Basically, expect propaganda favorable to the GOP but completely negative to any member of Congress who dares to run against them. Also, expect propaganda targeted at dividing the left. And I wouldn’t rule out a presence by conservative white gun owners near polling places to intimidate voters of color and/or liberal voters.

Then, midterms come. Imagine all the anti-GOP votes are there for an overwhelming change in Congress, and imagine all the tricks the GOP can use to win have not succeeded, even with mass propaganda and press suppression and gerrymandering and voter restrictions, and they are unable to take congress again. At this point, expect claims of widespread voter fraud. It happened after Trump WON when the president and many of his supporters claimed fraud had occurred although no proof of it existed. So, fraud is claimed. Likely, (improper or suppressed) recounts ensue, but the Supreme Court can step in, as with the Gore/Bush/chad debacle, and declare all recounts over. The GOP is still in control of Congress.

But people are angry, so they take to the streets. Oh, those handy protest laws they passed sure are helpful here, though. So are conservative gun-owning Trump and GOP supporters, who could take to the streets and probably not be bothered by it, as long as they’re white and opposing the liberals. Hell, they might even form legal militias… Still, the protests continue. Jails are full of liberal protesters.

Meanwhile, the Supreme Court has ruled, just as Trump has called for, to get rid of due process at the border. Mass deportations occur. The concentration camps and Walmart jails sit empty. Someone, probably Miller and Sessions, point out to Trump that he can pretty much use ICE as his Gestapo at this point, accusing any political enemy of being a non-citizen, and they’d have no chance to prove otherwise. Protesters and dissidents and political enemies of Trump and the mainstream media who continue to tell the truth are put into the concentration camps or Walmart jails or exiled from the country. We exited the UN Council on Human Rights and recently had no problem with violating human rights at the border. By this point, we will likely exit the UN altogether. With help from Congress and the Supreme Court, borders are closed, with no one in or out unless exiled or approved. That recent massive increase in military funding sure is helpful here.

By now, the massively Republican Congress will have privatized most public services, with huge political contracts given to their corporate donors and friends. Private health insurance will be the only way to obtain care and our healthcare system will suffer. Medicaid, Medicare, disability and welfare programs will suffer incredibly deep cuts, (but will still likely find its’ way to poor white Republicans). Income inequality will be completely entrenched and many poor and sick people will die. Many of us will work to meet bare minimum requirements for living while the Republicans find a way to drain more of our income to corporations.

2020… if we still have free elections by then, we hold one. Again, despite all the ways the GOP can have advantages in this election now, and other new advantages they could have created, Trump manages to lose. He’s furious. He claims voter fraud and the majority loyal Supreme Court agrees. He’s “president” again. The dissidents have had it. That’s not how this country works. Some of them pick up arms. But, we just beefed up military funding like crazy, and it’s not hard to push back against citizens that might actually fight. Also, Trump loyalists usually have lots of guns, and they often just get a kick out of seeing liberals and people of color suffer, so they will likely happily take up arms against those who oppose Trump. They will enjoy threatening and rounding them up, if not shooting some. It’s a no-brainer. It sure is good we opened more private prisons and made concentration camps and Wal-Mart jails, because, by this time, many Americans are there. Perhaps we have prison camps and put prisoners out to work on farms or other labor camps, as unpaid labor for corporations.


If you haven’t figured it out by now, folks…this is a path to fascism.

We are completely and totally set up for it. ICE is a ready-made Gestapo. We have exited the UN Human Rights Council. We are building more concentration camps as we speak. Trump has expressed admiration for dictators more than once. We have a vital SCOTUS pick that could change the face of constitutional rights, and could indeed change our constitutional functionality. If we don’t do everything we can, we could be headed for fascism, authoritarianism, a great change in our democratic republic, a change in our fundamental rights.

Perhaps you imagine we’d never get that far. That’s fine. But, imagine lesser levels of this. Is that still ok with you? Was separating families at the border ok? Is a SCOTUS that rules women have no choice over their own bodies ok to you? Is a SCOTUS that might ultimately decide it’s fine to take away your right to protest cool? Is a SCOTUS who might agree it’s ok to censor the free press just fine? What if the SCOTUS repealed a woman’s right to birth control? What if the SCOTUS decides LGBTQ people don’t have the same rights as everyone else after all? What if racism ends up even more deeply ingrained in our justice system?

If you feel massively uncomfortable lately; if you are confused, disgusted, disappointed, scared – those emotions come with good reason. There are things happening here that deeply disturb and hurt many of us. We feel fear for a reason. We should be scared. Yet, I keep hearing these calls for civility, to be nice. When human rights are being violated, when the sick and the poor are likely to die, when the marginalized are suffering, when people of color are stil oppressed…keep it civil. Things could get much, much worse, as I’ve illustrated here. Seems to me it’s time for the gloves to come off.

Democrats, if they are willing to fight, may have some power here. First, they should absolutely hold strong together against any far right conservative or right-wing ideologue in the Supreme Court. Democrats can call out Republican hypocrisy all they want, the GOP doesn’t care. Being hypocritical, lying, and violating human rights DOES NOT bother them. They fight to win at all costs, so Democrats are going to have to get tough. Democrats could obstruct on the grounds that Trump might be choosing his own judge, (likely a Trump loyalist), should the ongoing investigations call for his impeachment. They could start fighting dirty and look into all those loopholes and ways to stall the GOP always seems to have. The Democrats could throw sand in the gears as much as they can and in any possible way, as the GOP has done before. The way things work out, they may need only one Republican to join them in their resistance. One possibility was Jeff Flake, but, apparently, that’s not an option anymore, as he has now said he will not withhold his support for the SCOTUS nominee put forth by Trump, (even though he’s been leveraging circuit court level approvals for votes against Trump’s tariffs). Apparently, his support for the party goes far beyond his distaste for Trump or his policies.

Again, the likely first issue up for a conservative controlled SCOTUS will be to repeal Roe vs. Wade, to take away a woman’s right to her own body and to make her own choices. Trump will almost certainly make this the first issue to help solidify support from “pro-life” voters and further establish an avid voter base for himself and the GOP. Trump has previously stated that his SCOTUS nominees will be “pro-life” in hopes of “automatically” repealing Roe vs Wade. It is an enormous issue for Trump, and if one of his picks is approved, women can say goodbye to their reproductive health choices.

Two Republican senators, Lisa Murkowski (R-Ak) & Susan Collins (R- Me), who have spoken out about a woman’s right to choose, could be among the hopes to vote against a SCOTUS nominee that would crush Roe vs Wade, and likely lead to a country where other rights become severely restricted. But they might have to be willing to give up their careers as Republican politicians to do so, as they could be known as the politician(s) that allowed abortion to continue. It would be an enormous statement, and possibly both physically and politically dangerous to them, but with their courage, we might avoid constitutional peril. Make no mistake, we are at a precipice. At the least, we could be at a place where women no longer have the right to choose, where racism is acceptable in the justice system, where workers and consumers have disappearing rights, where LGBTQ discrimination is totally fine. We could dissolve into a kleptocracy and an oligarchy. But, further, we could be pushing close to an authoritarian dictatorship, and possibly to fascism. All the factors are there. The parallels to Nazi Germany aren’t just similar anymore, they’re alarming.

Civility is lovely, but you can find power in your anger while still being civil. You can be demanding without being violent. You can be unwavering and still be polite. This is the time to find our power and use it. We are truly at a turning point that could change this country forever. All the feelings you’ve been sitting on – it’s time to act on them. This is a very serious moment in time. Call your congresspeople, beg them to unite and get tough against this SCOTUS pick. Call and write Murkowski and Collins and tell them the very state of the nation is at risk. Be active on social media by encouraging others to get involved. Volunteer for progressive and/or Democratic Congress nominees. Go to a protest! Knock on doors, register voters, form political action groups with your friends and like-minded individuals, or see what progressive or liberal political groups are already in your community. Find power in your torment, turn your angst into action. This is the time. The consequences are real.

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Written by Mary Morris

Mary Morris

Geek. Writer. Progressive. Follow Mary on Twitter @geekcontingency.
Mary Morris is a Guest Contributor to Progressive Army.

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Kennedy’s Retirement, Trump’s Replacement Could Trigger a Constitutional Crisis