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How Trump could do the least damage with his Supreme Court pick

How Trump could do the least damage with his Supreme Court pick
President Trump and Supreme Court Justice Anthony M. Kennedy participate in a public swearing-in ceremony for Justice Neil M. Gorsuch at the White House in 2017. (Carolyn Kaster / Associated Press)

Good morning. I’m Paul Thornton, and it is Saturday, July 7, 2018. It’s hot, and no pithy one-liner in this space can possibly dampen anyone’s misery today. Let’s look back at the week in Opinion.

The prospect of a dishonest, scandal-plagued president leaving his mark on our country for a generation or more by filling another Supreme Court seat understandably frightens many people who would rather not see a complete rollback of women’s reproductive rights or a justice system that favors wealthy interests over those of workers and unions. But in their dismay, many liberals might be missing something important: Not everyone in the Trump camp is unified behind a single candidate, let alone a guiding conservative judicial philosophy, to replace retiring Justice Anthony M. Kennedy.

In other words, there are different flavors of awful, some that President Trump’s critics might even be able to stomach. Law professor and former U.S. attorney Harry Litman looks at the nuances of the debate over the court’s future on the right and finds a few reasons for Democrats to be hopeful:

So what sort of extreme conservative might be preferable to have on the Supreme Court, if that must be our choice? I think that there are three distinctions that are important.

The first is that it’s important for the nominee to be an institutionalist, that is, someone who recognizes the importance of the court and the coordinate branches of government. Most everyone on the list qualifies. Indeed, that was the point of promulgating the list during the campaign — to signal to conservatives that Trump would not be as deranged as he otherwise appeared when it came to judicial nominations. (Some have speculated that the list may have helped reassure Justice Anthony Kennedy that he could safely retire.) If Trump were to go off-list and choose, say, Fox News host Jeanine Pirro — the kind of judicial candidate that is analogous to Trump as a politician — it would be a disaster for the court, which functions on mutual respect, collegiality and a vision of long-range stability.

Among institutionalists, in turn, we should prefer someone who is primarily a judicial conservative over a social conservative. Everyone on the list is both, to some degree. Still, there are some whose allegiance to the Federalist Society agenda is largely about social issues such as abortion. This seems to be the far-right’s beef with Kavanaugh; his judicial views may be unimpeachable, but he has demonstrated insufficient personal antipathy to abortion, gays and other perceived social evils.

If we’ve winnowed the list to judicial conservatives, the country and court are better served by a judicial restraint conservative — one who’d emphasize the need for caution in overturning precedent — rather than what we might call a lost Constitution conservative. This latter group believes that the court went deeply wrong sometime in the 1960s or before, issuing scores of rulings that in their eyes are liberal and activist. This identifiable cadre seeks to turn back the clock. Many of them admire the jurisprudence of Justice Clarence Thomas, who has called for the demolition of a series of bedrock constitutional doctrines from the last 70 years.

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Pack the court — our nation’s future depends on it. Harold Meyerson’s suggestion for Democrats is more confrontational: They should run on remaking the Supreme Court for the midterms and, if they take control of Congress, refuse to confirm any more of Trump’s judicial nominees and pass legislation expanding the number of high court justices from nine to 11. Under a Democratic president, Meyerson says, the newly created seats would be filled by justices who would slow the Supreme Court’s rightward march. L.A. Times

Trump is not a normal president. How should we treat his Supreme Court pick? Nick Goldberg, the L.A. Times’ editorial page editor, digs up an editorial from the time President George W. Bush nominated John G. Roberts Jr. to be chief justice, and excerpts a passage calling the Democrats who opposed Roberts, an “exceptionally qualified nominee,” nothing more than “self-defeating obstructionists.” Goldberg asks: Should Trump get the same deference as Bush? L.A. Times

Fighting over Scott Pruitt’s replacement will be political gold for the Democrats. It’s almost a certainty that the ex-Environmental Agency Protection chief would still have a job if he had kept his focus on reversing helpful regulations and avoided renting a condo for next to nothing. Or jetting around with an expensive security detail. Or leveraging his position to get his wife a high-paying job. Now, expect Democrats to be energized by the fight over the next EPA administrator, writes Jon Healey. L.A. Times

He asked for asylum. He was deported, and his son was taken away. This is a heartbreaking, enraging story that took place on the U.S.-Mexico border in California: A father who fled gang violence and death threats in Honduras trekked across Mexico to California, where he lawfully asked for asylum at the border. He was promptly arrested and deported, and his son was taken to a shelter in Maryland. Perhaps the saddest part: The father, not knowing it was the U.S. government that took away his child, blames himself: “Brayan is sad. He’s in despair. And I feel guilty. I threw my son away.” New York Times

Anaheim is finally fighting back against Disneyland over low wages. This November, voters in the city will be asked to approve a living wage requirement on tourist attractions that receive subsidies (cough, Disneyland, cough). Columnist Gustavo Arellano, who grew up in Anaheim, says this voter revolt, which “would’ve been unimaginable even five years ago,” serves as a warning to the business titans that have effectively colonized entire cities and regions without providing them the prosperity they promised. L.A. Times