A death in the family. A punch to the gut. The announcement of Justice Anthony Kennedy’s retirement felt to me and many people I know like both of those, but even more so like something else: a sick cosmic joke.
How much power will a president with such tenuous claim to it get to wield? How profound and durable an impact will such a shallow and fickle person make?
Donald Trump barely won the White House, under circumstances – a tainted opponent, 3 million fewer votes than she received, James Comey’s moral vanity and Russia’s amoral exertions ‑ that raise serious questions about how many Americans yearned to see him there.
But he’s virtually assured of appointing as many judges to the Supreme Court as each of his three predecessors did and could reshape Americans’ lives even more significantly. It’s the craziest dissonance. The cruelest, too.
In his heart of hearts, he doesn’t give a damn about rolling back abortion rights. Any sane analysis of his background and sober read of his character leads to that conclusion. Yet this man of all men ‑ a misogynist, a philanderer, a grabber-by-the-you-know-what ‑ may be the end of Roe v. Wade. Time to spring into action, Ivanka! I type that in jest, knowing that my keystrokes are in vain.
So many of Trump’s positions, not just on abortion but also on a whole lot else, were embraced late in the game, as matters of political convenience. They were his clearest path to power. Then they were his crudest way to flex it.
Now they’re his crassest way to hold on to it. He will almost certainly move to replace Kennedy with a deeply, unswervingly conservative jurist not because that’s consistent with his own core (what core?) but because it’s catnip to the elements of his base that got him this far and could carry him farther.
Never mind how much it exacerbates this country’s already crippling political polarization. Never mind how much fear it sows in many women, in many people of color and in many LGBT Americans, all of whom could see rights that they fought so long and hard for snatched away. Never mind that this is a moment, if ever there was one, to set a bipartisan example and apply a healing touch.
Trump will gladly cleave the country in two before he’ll dim the applause of his most ardent acolytes. What puffs him up takes precedence over what drags us down.
Get ready: He’ll crow and taunt. He’s already crowing and, characteristically, making Kennedy’s retirement all about him. “I’m very honored that he chose to do it during my term in office because he felt confident for me to make the right choice and carry on his great legacy,” Trump said.
He will bully, both ideologically and tactically. And he will get his way, because ‑ this is part of that cosmic joke ‑ the advantages seem always to cut his way. The obstacles teeter and collapse.
Other presidents have had to worry about getting 60 votes in the Senate for Supreme Court nominations to proceed. Not Trump. Despite all the smack that he has talked about Mitch McConnell, the Republican majority leader is there for him, their interests perfectly aligned on this.
McConnell used the “nuclear option” once already, for Neil Gorsuch, rendering a Democratic filibuster irrelevant. So the precedent has been set. The coast is clear.
It’s possible, yes, that two Senate Republicans ‑ Susan Collins of Maine and Lisa Murkowski of Alaska ‑ would vote against Trump’s next nominee, not wanting to help deliver the death blow to Roe v. Wade, and that Trump would then need a Democratic vote to get to 50. But it’s also possible that he could get several of those.
That’s what I mean about his outrageous fortune, his incessant advantages. The senators up for re-election in November include a number of Democrats in red states that heavily favored Trump in 2016. They have to worry about bucking and inflaming him by denying him his pick for the Supreme Court.
In fact three of them ‑ Joe Manchin of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota ‑ supported Gorsuch’s confirmation last year. It’s no accident that North Dakota, which Trump won by nearly 36 points, was the site of his rally Wednesday night.
Kennedy’s retirement and the acrimonious debate over his replacement will undoubtedly galvanize voters in the midterm elections in November. There’s disagreement among political analysts about which tribe ‑ Republicans or Democrats ‑ will benefit more at the polls.
But here’s the most galling thing: In terms of the Supreme Court, it won’t matter, not if Trump and McConnell follow through on their expressed determination to fill Kennedy’s seat before the midterms. Distraught Democrats could turn out in droves, create a blue tidal wave and take back the Senate as well as the House. They’d still be living with Trump’s court ‑ and they’d go on living with it, in all likelihood, for many years to come.
Trump is hardly the only modern president to have a dubious mandate. George W. Bush, for example, was inaugurated after a messy recount of votes in Florida and a disputed resolution imposed by the Supreme Court.
And Trump’s Supreme Court opportunities aren’t unique. Both Bill Clinton and Barack Obama, as it happens, got their two chances to nominate new justices during their first two years in office as well.
But the shakiness of Trump’s claim to majority support, the intensity of antipathy to him and his sneering, gloating, uncompromising response to that aren’t a familiar combination. It’s impossible to square the roughly 77,000 votes by which he won the Electoral College with the license that he has given himself and the rein that the members of his adopted party have given him.
As usual, the truth about Trump is the opposite of the story he tells. He points to Robert Mueller’s investigation and to negative media coverage and portrays himself as a modern-day martyr.
But he’s the luckiest man alive. Although he savaged the GOP en route to its presidential nomination, he was greeted in Washington by a mum McConnell, a blushing Paul Ryan and a mostly obsequious Republican congressional majority.
And now, with a hand-picked replacement for Kennedy, he’d probably have “fewer checks on his power than any president in his lifetime,” Mike Allen wrote on Axios on Thursday, adding, “The media, normally the last check on a president with total control of government, has lost the trust of most Republicans and many Democrats, after two years of Trump pummeling.”
That doesn’t account for a Democratic takeover of at least one chamber of Congress, the importance of which cannot be overstated. And it ignores one other check that works on some presidents but not on Trump.
It’s conscience. A better man might shudder somewhat at the division that he was sowing and the wreckage in his wake. Trump merely revels in his ability to pull off what nobody thought he could. Shamelessness is his greatest gift. How unfunny is that?
Frank Bruni is a columnist for The New York Times. Reach him c/o The New York Times, Editorial Department, 620 8th Ave., New York, NY 10018. © 2018 New York Times News Service