How we’ll remember Justice Kennedy’s Supreme Court impact
Syndicated columnist Mark Shields and New York Times columnist David Brooks join Judy Woodruff to discuss the week’s news, including the retirement and legacy of Justice Anthony Kennedy, a shocking Democratic victory in Queens, and the continued fallout over the Trump administration’s “zero tolerance” immigration policy and family separation.
And now to the analysis of Shields and Brooks. That is syndicated columnist Mark Shields and New York Times columnist David Brooks.
Big news, the equivalent of an earthquake, I guess, in Washington, political earthquake.
Mark, what does it mean that Anthony Kennedy is stepping down from the Supreme Court? What does it mean for the court? What does it mean for the city, for the country?
No, let me just say, God likes Donald Trump, because she has now given him a second appointee to the Supreme Court, something that Barack Obama, in eight years, got two. Bill Clinton in eight years got two. George W. Bush in eight years got two. He's getting two in 18 months.
Anthony Kennedy is getting encomiums of praise, in large part, Judy, two sources. One, he was a gentleman. He was considerate to those around him. He didn't — there was no personalizing or polarizing to him. And that is welcome and refreshing in this Washington.
But the second thing is, he was a liberal on individual rights and sort of social issues. He wasn't on economic issues. He always came down on the side of corporations against consumers and the side of the employer against — the boss.
And he wrote probably the worst opinion, in my judgment, in the history of American politics, the campaign — permitting corporations to make unlimited campaign contributions, and allowing the gushing of water — of money into campaigns.
But he will — he has been a key vote on capital punishment, on a whole host of issues, including gay marriage and ratifying Roe v. Wade. So, in that sense, the nominee will be to the right of him, and it will perhaps energize Republicans who were not energized about 2018.
How do you see his legacy first?
Well, first, it struck me that a lot of my progressive friends are reacting like losing Kennedy is like losing, I don't know, Franklin Roosevelt.
Like, suddenly, they're all on his side, which is odd to me, because, in most of his decisions, Citizens United and Bush v. Gore, he voted very solidly with the conservatives.
But it shows the prominence of two issues for progressives, which is abortion and gay marriage, and it shows how the social issues really are what motivate people these days.
I would say I would characterize him as a pragmatic libertarian, tended to emphasize individual rights and freedoms. And so sometimes that went a little — a lot of time, it went a little right. Sometimes, it went a little left. But it tended to be an individualistic mind-set, which had some good virtues.
I thought it — in general, it weakened any sense of community, any of sense of, we have a shared nation, because his world view was so individualistic.
Nonetheless, he was just a very cordial man, a very good man to be around in Washington, an exemplar of an old style public servant.
As for the politics, I agree with Mark. It's just a total gift for Republicans. It will unify the right. It will energize the right. It will energize the left, too, but more — in the coming campaign, it puts pressure on the people in the middle.
And so Lisa Murkowski and Susan Collins on the Republican side, it puts some pressure on them, but I don't think a whole lot. They voted for Gorsuch.
Gorsuch, that's right.
But it puts a bunch of pressure on the centrist Democrats who are running in the red states. And I think puts more pressure on the Democrats than it does on the Republicans.
Yes, I agree with David.
Joe Manchin in West Virginia, who I think has to be favored for reelection, as a Democrat in a state, Donald Trump's best state, he won by 42 percent, that is going to be a difficult vote for him, especially if Mitch McConnell, in all likelihood, holds the vote around Halloween to keep attention riveted on the issue.
Heidi Heitkamp in North Dakota, a state that Donald Trump carried by 36 percent, Democratic incumbent. Joe Donnelly in Indiana that he carried by 17 percent. And Claire McCaskill in Missouri that Donald Trump carried by 19 percent. It's going to be a lot of political pressure for them.
Judy, the key to me is, this is a bigger issue, the Supreme Court has been, for conservatives and Republicans than it has been historically for Democrats.
For example, in the exit polls in 2016, the Clinton-Trump race, 26 percent of the Republican voters said the Supreme Court and who sat on it was an urgent vote matter to them, to the point that it affected and influenced their votes. Only 18 percent of Democrats said it was for them.
So, it's a built-in emotional advantage at a time when Republican enthusiasm and interest in the 2018 campaign has been sapping and had been draining.
That may — I wonder if that will change now because this pick obviously puts Roe v. Wade right at the center of our politics.
And it will actually open up something very interesting. I don't think it's — the nightmare scenario on either side, I don't think it's probably going to happen.
Which is? What is…
Which is that that Roe v. Wade will suddenly be overturned.
Because there is a precedent which Secretary — Justice Roberts has maintained through most of the terms — and the Obamacare case is a good example — of saying, I may agree, I may not agree, but what is settled law is settled law.
He has tended to be biased in that direction. And as we go through the hearings, whoever the nominee is, that's what they are going to say. And so they may disagree in principle on Roe v. Wade, but it is — it's reasonably settled, so they may hedge it or something. But it — I'm not sure we're looking at some massive overturn of Roe v. Wade either way.
But neither one of you sees any hindrance, anything standing in front of the president getting his choice for the court?
Sure, the choice himself.
We have had nominees rejected before because of something that was discovered or and their position.
I would just take one exception to David, and that is, over the last generation, Gallup has polled every single year. Americans have more — far more tolerant and far less censorious about having a child out of wedlock, or gay rights, or extramarital relations.
But moral acceptability of abortion remains divided exactly where it was 25 years ago. So it is an organizing and galvanizing issue still to this day, even though I think David's right that the status quo or precedent works to the advantage of those who would preserve it.
But how about it if it becomes the central issue in the campaign of 2018? Does that help the Democrats or not? Does it turn out Republicans who might not have — who might have sat home?
And speaking of that, the Kennedy announcement, David, came the day after progressive Democrats did surprisingly well in a number of the primaries this week.
And you had this unusual — shocking result in New York, where Joseph Crowley, who was somebody who was a part of the Democratic establishment in the House of Representatives and leadership, was beaten by a 28-year-old young woman who is seen as a self-described socialist Democrat.
What's going on with the Democrats, and how do you — now that we have got the Supreme Court move, how do you see that playing on top of what's happened?
The core question to me is whether this is David Brat all over again. And David Brat is the guy in Virginia who beat Eric Cantor. And that was a precursor to the Trump phenomenon. It was a sign that anger at establishment Republicans was so high that the party was about to undergo some fundamental earthquake.
And that could be true. But the Crowley loss, to me, was just one data point among a lot of data points. And there have been some of these races where the Sanders candidate has won, but there's been a lot where the mainstream Democratic candidate has won.
And I so think the balance of the evidence so far is that Democratic voters around the country are not upset with Democratic establishment the way Republican voters were with the Republican.
So I do not see a Sanders wave. I see these one-off cases where you — this was a very distinct district with a very, very talented candidate. And so she pulled off this amazing victory, but I don't see yet it as a part of a national trend.
How do you see it, Mark?
I don't see it as part of a national trend.
Joe Crowley was an exceptionally popular Democrat. He didn't fit the pattern of somebody who had grown remote from his district. He was the Queens Democratic boss, a position he had inherited from his predecessor.
But the axiom — maxim that all politics is local, which has seemed to be repealed by all politics being national, reasserted itself. I mean, this is a district, Judy, that has changed, demographically, dramatically. I mean, it's now a distinctly plurality of Hispanic voters, minority voters, and it's down to fewer than out of one out of five.
So, it is the House of Representatives. And I will say one thing about Joe Crowley. His concession was as gracious, compared to Donald Trump's continuing to savage Mark Sanford and gratuitously attacking Joe Crowley.
It was — he sang "Born to Run," Bruce Springsteen, song.
Sang a song dedicated to her.
And dedicated to her, to Alexandria Ocasio-Cortez.
So, you see it as a one-off?
Well, I mean, it's the first time a Democrat incumbent has lost in three elections.
David described Cantor. There had been a lot of Senate upsets where the right and the liberty group and the Tea Party had asserted itself before that.
There was — also, it came at a time when the border issue is such a vital issue, which aroused a lot of people's sense of, we have got to have our people in there.
And so — but, nonetheless, it still has to be said that voters are upset with establishments.
And it's not unprecedented — unlikely that we're going to get more of these.
So, quickly, you mentioned the border.
Where does the administration stand right now on immigration? I talked to Marc Short, the White House legislative affairs director, a few minutes ago.
Mark, what do we see here? You still have families being separated when they come across the border.
You do, Judy.
And you have got competing jurisdictions here of agencies, Health and Human Services. You have got the Department of Justice. You have got Homeland Security. You have got the Border Patrol.
You have got all of these issues. I think the time has come, if the president is serious about it, if the country is serious about it, to appoint a czar. Give somebody super powers, whether that person be Colin Powell or General Anthony Zinni, the former four-star Marine CENTCOM commander, or Martin Dempsey, the former chairman of the Joint Chiefs, or Mike Mullen.
I don't — but somebody who is going to be the face, the voice to whom all the others are accountable, because, right now…
… southern border?
On the border, on the family separation in particular at the border, because you can't get answers now.
I don't like any sentence that includes both Trump and czar at the same time. That scares me.
OK. That's OK.
The problem is not — well, there's the management problem. And maybe some sort of administrator would help.
But the core problem is the Trump administration, at least large parts of it, wants to send an intimidating message down to people south of the border. Don't try to come up here. It will be miserable for you.
And then — but they don't want to face the total political backlash of having a completely cruel policy. So they're stuck in the horns of that dilemma. At the same time, they're stuck in a bit of a legislative logjam.
So I think the lesson should be that we're not going to be monsters at the border. We're going to enforce the law, but we're not be total monsters.
But that goes against the policy that Jeff Sessions wants to support.
But just in a few seconds, is it doing political damage to the administration?
Well, Mark and I had a little discussion last week whether it would hurt Trump's approval rating. And I hate to say it, but I was right, in that it has not hurt his approval rating.
Well, no, his Gallup dropped precipitously.
I just looked at the numbers. So, we will come back next week.
We will come back next Friday.
You pick your own numbers, David. That's what you're going to do.
The Trump poll had him just…
How much is 11 and 7? Is it 17?
Hang around after the show. It gets even more exciting.
Mark Shields, David Brooks, thank you.
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