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You know how bad it is when you consider that liberals are mourning the departure of a rather consistently conservative justice appointed by Ronald Reagan. But the fact is, the only thing that has saved us from hard-right hegemony on the Court until now has been a succession of Republican appointees who failed to toe the conservative line in significant ways.

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The granddaddy of all was Earl Warren, the Republican governor of California appointed by President Eisenhower in 1953, who went on to preside over the epitome of a liberal court until his retirement in 1969. Eisenhower also appointed William Brennan, one of the most consistently liberal justices of the twentieth century, who served until 1990.

Nixon, to be sure, appointed Warren Burger to succeed Earl Warren, and Burger turned out to be conservative, and William Rehnquist, a hard-line conservative who later was nominated by Reagan as Chief Justice to succeed Burger. But Nixon also appointed another Minnesotan, Harry Blackmun, who turned into a stalwart of the liberal bench (author of the Roe v. Wade opinion), who served until 1994 when he was replaced by Clinton nominee Stephen Breyer.

Reagan was mostly successful in his Supreme Court appointments, including Rehnquist and his replacement as Associate Justice, Antonin Scalia. But in addition to the not-entirely-reliable Anthony Kennedy, Reagan also appointed the first woman to the Court, Sandra Day O’Connor, who became a frequent ally of Court liberals until her retirement in 2006.

George H.W. Bush appointed two justices, David Souter in 1990 and Clarence Thomas in 1991. Thomas has been consistently the Court’s most conservative justice by most measures, but Souter became part of the liberal wing until his replacement in 2009 by Sonia Sotomayor.

George Bush II appointed Chief Justice John Roberts to replace Rehnquist, and Justice Samuel Alito. Both have been consistent conservatives, though Roberts has occasionally defied conservative orthodoxy and may, by default, become the next swing vote that the liberals will need to prevail.

Of course, Trump has so far appointed the consistent conservative Neil Gorsuch, and promises to replace Kennedy in a similar vein. If he succeeds, a wild card will be succeeded by a Trump card.

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So Republicans have had many disappointments in their efforts to appoint conservatives to the Court. Democrats, by contrast, have had fewer apostates; one thinks first of Kennedy appointee Byron White, on balance a moderate conservative throughout his tenure until his replacement by Ruth Bader Ginsburg in 1993. Overall, though, liberals have been dodging conservative bullets with the help of off-the-reservation Republican appointees since the end of the Warren Court half a century ago.

Given the 51-49 split, and John McCain’s terminal illness, it is by no means inconceivable that the Senate could reject the nomination, particularly if the nominee is unable to soothe the moderates in both parties.

That is about to end. Trump has promised that his nominee will come from the same list that gave us Gorsuch, a list kindly provided by the conservative Federalist Society. These people have done their homework; we should be surprised if there are surprises.

Rays of hope: although Democrats lack the votes to block a Trump nominee, and though the rules no longer allow a filibuster of such a nominee, the arcane rules of the Senate do allow for some delays. With a little luck, the vote could be delayed until after the November election (but don’t count on it).

Given the 51-49 split, and John McCain’s terminal illness, it is by no means inconceivable that the Senate could reject the nomination, particularly if the nominee is unable to soothe the moderates in both parties.

There are a few Democrats from pro-Trump states (e.g., Joe Manchin of West Virginia, but not Bob Casey of Pennsylvania) who will be pressured to support Trump’s nominee. Whereas West Virginia is the most pro-Trump state in the country, Pennsylvania is truly a swing state. Casey is anti-abortion, but otherwise socially and economically liberal. It would be suicidal for him to support Trump’s nominee. The Democrats must first of all hold their caucus together.

There are also a few Republicans who might go the other way, most notably two moderate women who are pro-choice: Susan Collins of Maine and Lisa Murkowski of Alaska. Alaska, though it tends libertarian, went strongly for Trump. A vote against Trump’s nominee thus could be a career-ender for her. On the other hand, Maine is a swing state trending Democratic, in which Collins is a survivor. A vote FOR an anti-abortion nominee could be a career-ender for her.

Suppose, in spite of the above possibilities, that the nomination is finally approved. Then we face an era when the conservatives will finally have a totally reliable majority for their agenda. The only possible brake would be John Roberts, who as Chief Justice has at times expressed concern to maintain the Court’s legitimacy above the partisan battleground. If he’s serious about that, he will occasionally look (as he did with the Affordable Care Act) for a way to shape decisions that partially disappoint conservatives. That’s a weak reed for liberals to lean upon, but it’s what we will have.

impeachment unavoidable

Elections have consequences.

John Peeler