Considering the ages of the five conservative–perhaps reactionary is a better description–justices who now rule the Supreme Court, we are left to wonder what might have been the outcome of Justice Kennedy’s retirement had it occurred under other circumstances.
What if Kennedy had delayed his retirement until next January? If the Democrats failed to take back the Senate in November that would have made no difference. The Republicans would still control the Judiciary Committee and have a numerical majority in the senate barring any defections. Kennedy anticipated that the Republicans would still hold the Senate after the midterm election and he was anxious to spend more time with his family rather than wait a few more months to retire.
What if Judge Garland had been given a hearing by the senate and Republicans Collins and Murkowski voted to confirm him? Flake would probably have voted no, following his conservative views. It would have required an unlikely four Republican defections to overcome the 54-46 senate majority the Republicans held after the 2014 election. A 50-50 split would have given Vice President Biden the tie-breaking vote. He never got that opportunity.
What if Senator McCain had lived another month and only one other defecting Republican senator was needed to reject Kavanaugh? But McCain’s last heroic act might have been to be wheeled onto the senate floor where, with the aid of a staff member, he raised a fist with the thumb up, indicating the winning vote for Kavanaugh.
What if the FBI’s seventh and final investigative report had received direct orders from the president to follow every lead and to interview every potential collaborative witness? The result may still have been that no one actually witnessed the alleged assaults.
What if Senators Collins, Flake and Murkowski had used Kavanaugh’s prior rulings, public statements, temperament, lack of candor and truthfulness, and partisan utterances to determine their votes? But they, in the end, are Republicans and, except for Murkowski, Kavanaugh’s conservative leanings outweighed any remaining concern about possible disqualifications other than sexual misconduct.
What if Senator Feinstein had sent the Ford letter to judiciary chairman Grassley when she received it in July? The FBI would have investigated two months ago with the same results it reached in October and then Kavanaugh’s confirmation would have occurred weeks ago.
What if Ford had filed a police report at the time of the alleged incident? There would have been a report, and the corroborators might have remembered being at the party, but none of them could verify that the incident happened.
What if Trump had tried to find a moderate conservative to replace Kennedy, someone less committed to an evangelical interpretation on social issues? But he and Pence feared losing a significant part of their strongly conservative base if they did that.
What if Hillary Clinton had been elected president in 2016 and had the opportunity to nominate two or more justices in her first two years in office? The Republicans would still have controlled the senate and any one in the mold of Justice Kennedy would have faced the same wall that they put up against Obama’s last nominee, Judge Garland. If Clinton had won, the Alabama senate seat that went to the Democrats in that special election would not have been theirs. Senator Sessions would not have resigned to become attorney general, thus keeping the Republican majority at 52-48. That margin would have required two doubtful Republican defections to give Vice President Kaine the tie-breaking affirmative vote.
What if another of the social issue liberal justices leaves the bench before 2021? If the Democrats do win the senate in November, the court will remain 5-3 until 2021. But another two years with a Republican senate will guarantee any vacancy will be filled with a conservative, and reactionary decisions on social and economic issues will be made into the last half of this century.
Ralph E. Shaffer is professor emeritus of history at Cal Poly Pomona. reshaffer@cpp.edu.
