I’ve got your judge right here: Gentlemen, place your bets. I’ve got Brett Kavanaugh at 5 to 2, Amy Coney Barrett at 4 to 1, and coming up fast on the inside, Ray Kethledge at 8 to 3. Kavanaugh has been on a bit of a fade, Miss Amy is holding steady over the past 24 hours, and some smart money is trending toward Kethledge. Looks like a down to the wire race.
The numbers are bogus, of course. I made ‘em up. All speculation on who’s winning and who’s not is a silly conceit of punditry. Who knows what mischief lies in the heart of man? Only the president do. The president, and the Shadow, of course. Neither the president nor the Shadow is telling.
Donald Trump is having the time of his life, doing what he does best, making a game of duty, building suspense and conning the public like a barker at the state fair. The president says he’ll announce his choice, perhaps even with first and second runners-up as in the Miss America finals, on Monday morning.
But the president has done nothing to discourage the speculation that the finalists, in no particular order, are Judges Barrett (gallantry requires putting the lady first), Kavanaugh and Kethledge. All are unanimously regarded as straight shooters on the Constitution with reputations for courage and writing opinions with clarity and insight, understanding that the Founding Fathers, particularly President James Madison, wrote the Constitution with such strength and simplicity of language that even a lawyer should understand it.
The editorialists, academics and other hysterics of the left are working themselves into a lather over what all this means for decent folk everywhere. The day after Anthony Kennedy announced his retirement, The New York Times did the best it could to reassure those decent folk, but it didn’t have much to offer: “It is a dark moment in the history of the court and the nation, and it’s about to get a lot darker.” Indeed, as Other Paper reminds its readers every day, “democracy dies in darkness.”
“All this panic,” observes Dan Henninger in The Wall Street Journal, “is supposed to be about the future of Roe v. Wade, the 1973 decision establishing abortion as a right. In fact, the threat to Democratic political rule is even bigger than Roe v. Wade, which was about just one thing. What is at risk is the rationale for judicial overreaching that was created in the Supreme Court’s 1965 decision, Griswold v. Connecticut.”
The Griswold opinion, written by the late William O. Douglas, held that even if the Constitution didn’t provide a right of privacy, and the right to abort a child, it should have, could have, and it was probably just an oversight by Madison and his colleagues that they didn’t. Justice Douglas explained the trick: “Specific guarantees in the Bill of Rights have ‘penumbras,’ formed by emanations from those guarantees that help give them life and substance.”
No one had ever actually seen one of these little critters, either penumbra or emanation, but Justice Douglas assured everyone that they were there, perhaps like a hanging chad. Such a penumbra was what Justice Anthony Kennedy saw hanging off the edge of the Constitution, like pink and blue ribbons on a wedding bell, telling him that the Constitution included the right of every man to marry another man and call it marriage. Even if he couldn’t find even a specific penumbra or exact emanation, Justice Kennedy reckoned it was a nice and neighborly thing to do. Doesn’t everyone deserve a kiss and a cuddle from time to time?
But soon Justice Kennedy will be gone, and the penumbras and emanations are likely to dance away, like fireflies on a summer’s night. This is the likelihood that drives the left into the deep end of the pool. The New York Times seems to see a penumbra (or maybe it’s an errant emanation), that suggests that the Supreme Court is finished as a legitimate branch of government, following the legislative branch to oblivion, leaving only lawsuits and the executive order as used by Barack Obama to save us all from the perdition of rule by the unwashed classes.
Desperate circumstances lead to fantasies of desperate solutions. Chuck Schumer looks at the numbers and finds it hard to imagine a way to block the president’s nominee, whoever he or she might be. Even if one or two Republican senators — here’s looking at you, Susan Collins and Lisa Murkowski — go rogue and vote against the president’s choice, several Democrats at risk of losing their seats will “adjust” their convictions and tweak their principles, and vote to confirm.
Or maybe the president can be persuaded to appoint a Democratic swinger to replace Justice Kennedy. Good will, and all that. I put the odds on that at 100 to 1.
• Wesley Pruden is editor in chief emeritus of The Times.
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