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The End of the Myth of the Legal Supremacy
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The End of the Myth of the Legal Supremacy

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WASHINGTON – July 6, 2018

There is a powerful yet enduring myth in America that Law stands in opposition to politics and also that the Supreme Court stands above politics and that when it makes its decisions, it does so on the basis of what the law says, not on ideology. This myth has now been shattered by reality. The reality is that the Law is not above politics, and the judiciary uses it to resolve political questions.  Political science research shows that more often than not votes by individual Justices reflect their personal political beliefs. Surveys suggest declining confidence in the Supreme Court’s neutrality, and increasingly Justices look more like the managers of one political team or another. And now we see how one political team of four Justices are playing against another team of four Justices, with dueling for the swing vote of Justice Anthony Kennedy to pitch or hit for their team.

President Donald Trump is promising to select a "great" Supreme Court nominee to fill the vacancy of the retiring Justice Anthony Kennedy. He is balancing their political attractiveness, legal records, and personal chemistry as he nears his declared July 9th deadline for announcing his choice to succeed the retiring Justice.

The White House says Trump has spoken to seven candidates so far. There were four interviews Monday, as well as a conversation with Republican Sen. Mike Lee of Utah, who is not regarded as a top contender but who is being pushed by key conservatives.

 President Donald Trump spoke with three more potential Supreme Court candidates on Tuesday as a key senator privately aired concerns about one of the contenders.

Trump has also spoken with Thomas Hardiman, who has served with Trump’s sister on the 3rd U.S. Circuit Court of Appeals in Philadelphia, according to a person familiar with the conversation who also was not authorized to discuss it publicly.

Another candidate considered a top contender is Joan Larsen, who serves on the federal appeals court in Cincinnati.

Since Trump said his short list includes at least two women, speculation has focused on Barrett, a former law clerk to Justice Antonin Scalia and a longtime Notre Dame Law School professor who serves on the 7th U.S. Circuit Court of Appeals. Conservative groups rallied around Barrett after her confirmation hearing last year featured questioning from Democrats over how her Roman Catholic faith would affect her decisions.

But her short tenure on the bench may work against her. And Democrats claim that Barrett — like the other picks — would favor overturning Roe v. Wade, the 1973 case that affirmed a woman’s right to abortion and would weaken President Barack Obama’s 2010 health care law.

There have also been lobbying efforts around other candidates, but people familiar with the search said the president interviewed seven Supreme Court candidates on Monday and Tuesday, the final steps before he decides on the second high court nomination of his presidency.

Trump’s choice to replace Kennedy — a swing vote on the nine-member court — has the potential to remake the court for a generation as part of precedent-shattering decisions on abortion, health care, gay marriage and other issues. Recognizing the stakes, many Democrats have lined up in opposition to any Trump pick, and Republicans lawmakers and activists are seeking to shape the president’s decision.

Several GOP senators have bucked their party in the past, including Susan Collins of Maine, who on Tuesday became the focus of an advertising campaign by NARAL Pro-Choice America, trying to persuade her to reject any candidate who doesn’t share her belief that the court should maintain broad support for abortion rights.

It looks like abortion rights have become a key issue of a political divide, the final frontier for many liberals. And they feel they are losing it.

CNN legal analyst Jeffrey Toobin predicted that abortion would soon be illegal in many states within months of Supreme Court Justice Anthony Kennedy’s retirement. Toobin tweeted: “Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months.” And he has good reasons to believe that.

 Since the start of his 2016 campaign, Trump has embraced anti-abortion groups and vowed to appoint federal judges who will favor efforts to roll back abortion rights. But he told reporters Friday that he would not question potential high-court nominees about their views on abortion, saying it was “inappropriate to discuss.”

But liberal activists simply don’t believe him. They are launching campaigns now to try to influence the choice of the next Supreme Court justice. One day after Supreme Court Justice Anthony Kennedy announced his retirement, a group calling itself Demand Justice staged a rally outside the court's front steps.

Activists who said they support civil rights and abortion rights mixed with Democratic senators.

Liberal groups that oppose the president's judges are expected to spend millions of dollars for their campaign in an attempt to influence the outcome of the nomination process.

 To start, they're running TV ads in several states including Maine, Alaska, West Virginia, Indiana and North Dakota, to reach the constituents of key senators.

They also will use the potential of the liberal media. Human rights and LGBT groups who worried about legal challenges from conservative groups that oppose same-sex marriage may see an opportunity to challenge rulings that have established its legality.

Activists pointed to state-level restrictions on abortion as a model for how already-established rights, like same-sex marriage, could be undermined. Measures in states like Arkansas and Texas have limited the availability of abortion services despite Roe v. Wade.

"What we've seen is you don't have to go overturn the marquee case in order to make the rights inaccessible to real people," said Rachel Tiven, the president of Lambda Legal, an LGBT legal advocacy group. "The question isn't whether or not the marriage equality decision will be overturned -- the threat is they will be hollowed out from underneath by a combination of religious exemptions and state rejection of equal treatment."

Conservative activists and LGBT groups agree that religious liberty cases could be the most potent challenges to same-sex marriage and other issues concerning gay and transgender people.

LGBT groups have made great advances in recent years thanks largely to a string of Supreme Court decisions written by Kennedy, including cases that legalized gay sex and established a right to same-sex marriage.

Religious conservatives had been cautious about what cases involving marriage to bring to the court as long as Justice Kennedy was on the bench, concerned that it could establish a precedent with a ruling unfavorable to them. Now that Kennedy has retired, that dynamic has shifted, said Mr. Staver, and it is gay rights groups who should proceed with caution.

"In the absence of Kennedy, I'd think they'd want to stay as far away from the Supreme Court as possible on any gay rights issue," Mr. Staver said. "They are going to have to move their attention to local battles. That is a huge shift."

Mara Keisling, the executive director of the National Center for Transgender Equality, agreed that LGBT groups might need to reconsider how they think of the court. She was particularly concerned about the list of potential nominees posted to the White House website last fall.

"Potentially, we don't have the Supreme Court as a democratic backstop anymore, or we will not live in the future if anyone on this list gets through," she said.

Trump’s supporters pointed out that it’s a typical example of liberal democracy. As Carrie Severino, a former clerk for Supreme Court Justice Clarence Thomas, and policy director of the conservative Judicial Crisis Network pointed out, conservative voters unite around the issue of judges, but it's harder for Democrats. They don’t accept any point of view that departs from their one.

“Remember "Abolish the Electoral College"? Get ready for "Abolish the Supreme Court!" as Trump packs it with actual law-respecting Constitutionalists. Look for "is the supreme court a sexist, white supremacy organization" from the fake news outlets. You know the drill: they defame what they don’t control,” wrote another of Trump’s supporter, on his blog.

Thus, the issue of appointments to the Supreme court has been taken out of its traditional, technical frame. It’s now a political issue, and it demonstrates how polarized American society has become. People did not trust real politics, such as elections and voting, as the way to secure their political objectives. They do not trust the Supreme Court anymore, as Justices continue to vote ideologically.

This is bad because one of the last remaining realms where polarization and politics have not tainted government may now be gone, leaving the public without any checks on the extremism that has marked contemporary politics.

Author: USA Really