The May 7 headline from the Washington Examiner is almost a shout: “Anthony Kennedy sends SCOTUS rumor mill into overdrive.”
If you read the actual article from Melissa Quinn, though, it becomes obvious that Justice Kennedy didn’t “send” anyone anything, or take any action to confirm or deny speculation that this might be his last term on the Supreme Court. She does, however, suggest the real source of the grist for the “SCOTUS rumor mill”:
[W]ith Kennedy’s 30th year on the high court passing in February and the justice nearing 82, the whispers about his future seem to be growing louder.
And congressional Republicans haven’t been shy in vocalizing their hope for a vacancy on the high court before the 2018 midterm elections.
Sometimes when you hope for something intensely, it begins to appear in your imagination as a real thing at the very least encouragement. This dynamic was made especially plain the last time the “SCOTUS rumor mill” really got revved up, in March. It seems to have been conjured up out of thin air by Senator Dean Heller:
“Kennedy is going to retire around sometime early summer,” Heller predicted in Las Vegas last week, according to audio of an event he spoke at that was obtained by POLITICO. “Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated.”
The very endangered Heller could sure use a little extra help from fired-up conservative activists snake-dancing to the polls to change the Supreme Court’s trajectory for the foreseeable future. It would not be hard at all for Republicans to convince them that hanging on to the Senate is absolutely necessary to give Donald Trump the chance to place a second Justice on the Court who would very likely provide the fifth vote to overturn or significantly modify Roe v. Wade and other liberal constitutional precedents. And so what if Kennedy is not actually going to retire right away? Maybe he will during the next two years, when a Republican-controlled Senate would still be poised to confirm a Federalist Society–vetted “strict constructionist” who had spent years dreaming about the day when the baby-killing looter-coddling judicial activists are finally put in their place.
A SCOTUS opening may be the best 2018 base-motivator for Republicans out there, but there are others. The specter of impeachment of the beloved 45th president before he can MAGA is one that is already being deployed by GOP opinion leaders, though Democratic congressional leaders are not cooperating with the requisite promises to drive Trump from the White House prematurely. A vaguer but more menacing threat is being suggested almost daily by conservatives led by House Intelligence Committee chairman Devin Nunes: that a pervasive “deep state” conspiracy led by Robert Mueller and rogue FBI agents is seeking to carry out a quiet coup against Trump that only an aroused citizenry can stop.
The truth is that the would-be GOP base-motivators are fighting not just Trump-hating resisters and their cheerleaders in the mainstream media, but history: Midterm losses almost always happen to the party of presidents unless the POTUS in question is very popular, which is unlikely ever to be the case for Donald J. Trump. Republicans know this, even if Trump himself, who is not exactly a student of history and can’t seem to imagine that any real Americans dislike him, doesn’t. And this is why they keep searching for some X factor that will get conservatives psyched out of their skulls this autumn, not only voting but writing checks and telling their friends and family and neighbors that the world as they know it will basically come to an end if Democrats retake the House and/or the Senate. You can expect various “rumor mills” that promote that point of view to work overtime between now and November.