A protester waves an American flag in front of the Supreme Court during a protest about President Donald Trump's recent executive orders, Monday, Jan. 30, 2017 in Washington. (AP Photo/Alex Brandon)

Four. That’s All. Four. And Anthony Kennedy Has Apparently Changed His Mind.




Perhaps the most compelling talking point used by President Trump’s friends in 2016 to defend him was the courts. It wasn’t just the Supreme Court. At the end of Barack Obama’s time in office, the federal judiciary had 105 US District and Circuit Court vacancies, which is the highest of any President except Bill Clinton since 1980.

Electing Trump would not only save the Supreme Court because of Antonin Scalia’s death, but he had the opportunity to shape the future of the country like few Presidents before him could. With that many vacancies, the President could have an outsized impact.

Except he isn’t. Thus far, the President has seen only four circuit and district court nominees confirmed by the Senate. Four. Obama had 11 in his first year. George W. Bush had 28. Bill Clinton had 27.



Now, folks on the right are blaming gridlock in the Senate. And that’s a fair point. The Senate Democrats are demanding 30 hours per nominee, which means that if the Senate actually did do that it would take more than eight years to confirm all the President’s nominees.

But Mitch McConnell is dragging his feet too. It is not just the Senate Democrats and the GOP is casting all the blame that way. The Democrats play hardball better than the GOP. McConnell could do all sorts of things, including putting off debt ceiling votes and stacking the deck to blame the Democrats. He could put pressure on the Democrats who are massively on defense in 2018.

McConnell is not doing that however, because McConnell wants to punish the President. The entirety of the conservative advance in the judiciary is really being held hostage by the pissing contest between McConnell and Trump.

But, on top of that, the reality is that President Trump has hurt himself. It is an open secret in Washington that Neil Gorsuch’s appointment to the Supreme Court was to show Anthony Kennedy that Trump would not screw up the judiciary. It would make it safe for Kennedy to retire. But it is just as open a secret in Washington that Kennedy has seen what is happening with Trump now and decided he must stay.

That’s right. Those of you who voted for Trump to rescue the Supreme Court will have to do this all over again in 2020 because the President’s behavior has guaranteed neither Breyer nor Kennedy will be going any time soon. Short of the grim reaper, the Supreme Court will be unchanged and Kennedy will be moving further left as a response to President Trump’s behavior. The man who was all set to retire now will not and it has a great deal to do with Donald Trump’s personal behavior as President.

This is what you call a pyrrhic victory.

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Erick Erickson

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