As President Trump prepares to name a replacement for retiring Justice Anthony Kennedy, The Washington Post issued this challenge: “If the centrists stick together, they can force the selection of a reasonable, mainstream judge in the mold of Mr. Kennedy or Justice Sandra Day O’Connor, who were both appointed by President Ronald Reagan. If the senators fail to use their leverage now, the result will be more politicization of the bench and a more extreme court for a generation.”
This is a worthy and winnable goal. Trump has 2 1/2 years left in his term, and blocking all his nominees to the court -- even if Democrats regain a majority in the Senate next fall -- is totally unrealistic.
But the centrists have a chance to deter a sharp lurch to the right by the court, which could undermine basic safeguards: for women seeking abortions, gay couples yearning to marry, minorities wanting to vote and attend elite colleges. They would also be protecting the credibility of the court itself, which was designed to mitigate swings toward the ideological edges, not amplify them.
The real question is whether the centrists, few as they are, have the fortitude to defy Trump if he picks a justice outside the “reasonable mainstream” model of Kennedy and O’Connor.
The numbers give them some leverage. Republicans control only 51 Senate seats -- and John McCain, gravely ill with brain cancer, is unlikely to vote. So if all 49 Democrats stick together, a very big “if,” one Republican defection could doom Trump’s choice.
The odds are stacked strongly against the centrists, however. The steady polarization of the last generation has produced something close to a European model in this country: two parties defined by ideological orthodoxy. Moderates in both parties have been severely weakened, especially Republicans, who have long played a critical role in thwarting the more extreme judicial nominations made by GOP presidents.
During the Nixon administration, 17 Republicans voted against the nomination of Clement Haynsworth to the high court, and 13 opposed G. Harrold Carswell. Both were Southerners with questionable civil rights records, and both failed to win the seat. In 1970, the seat went to Justice Harry Blackmun, who would author the Roe v. Wade decision legalizing abortion three years later.
In 1987, six Republicans helped defeat President Reagan’s choice of Robert Bork, who they considered too rigidly conservative. That seat was eventually occupied, for 30 years, by Justice Kennedy.
So far, the only centrist to warn Trump against picking a hardliner is Sen. Susan Collins of Maine. “I would not support a nominee that demonstrated hostility to Roe v. Wade, because that would mean to me that their judicial philosophy did not include respect for established decisions, established law,” she said on CNN.
Collins has been pretty lonely in her resistance. Lisa Murkowski of Alaska, the only other pro-choice Republican senator, says she will consider many issues, not just abortion. Two outspoken Trump critics who are not running again, Jeff Flake of Arizona and Bob Corker of Tennessee, remain timidly silent.
In truth, it’s very difficult to be a centrist in today’s Republican Party, which was moving sharply to the right long before Trump came along. Look what happened to some of the GOPers who opposed Bork in 1987: John Chafee of Rhode Island was dumped from his Senate leadership post in 1990 because fellow Republicans considered him too progressive. Lowell Weicker also left the Republican party and became an independent governor of Connecticut. Arlen Specter of Pennsylvania was challenged from the right when he ran for re-election in 2010. He switched parties, became a Democrat, and lost the Democratic primary. John Warner of Virginia never left the GOP, but did endorse Hillary Clinton over Trump.
The Senate’s Democratic leader, Chuck Schumer, wrote in The New York Times that “Justice Anthony Kennedy’s retirement has created the most important vacancy on the Supreme Court in our lifetimes.” He’s right, but Democrats are largely powerless to influence Trump’s choice.
The key lies with a handful of Republican centrists, heirs to a long and noble tradition of pragmatism but decimated by years of polarization and defeat. Their forebears defied Nixon and Reagan, and helped save the country from Haynsworth, Carswell and Bork. Can Collins and her allies summon the courage to emulate their example and stand up to Trump?
Steve and Cokie Roberts can be contacted by email at [email protected]