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Long IslandColumnistsDan Janison

Any Republican POTUS would have the same impact on SCOTUS

Senate Majority Leader Mitch McConnell of Ky., speaks

Senate Majority Leader Mitch McConnell of Ky., speaks with reporters following a closed door luncheon on Capitol Hill in Washington on Tuesday. Credit: AP / Andrew Harnik

Last Wednesday morning, the Supreme Court declared for the first time that government workers who decline to join a union cannot be charged fees in lieu of dues for the cost of collective bargaining.

Just a few hours later, Justice Anthony Kennedy announced his retirement after 30 years, during which he became the court’s “swing vote.”

The dues ruling, followed by word of a new opening on the high court, added up to back-to-back home runs for U.S. conservatives.

Together, these separate news stories illustrate that changes on the court stem more from the fact that a Republican was elected president than who that president happened to be.

This one is all about party.

In a Donald Trump branding arrangement, others build and design the structure and he markets it with his name on it.

The same approach might be at work with the court.

Take the public employee case, Janus v. AFSCME.

Unions and conservative advocates were anticipating the very same result in early 2016. But the sudden death of Justice Antonin Scalia derailed it.

That is, Scalia’s death meant the Friedrichs v. California Teachers Association case — that challenged the same status quo as Janus — soon reached a 4-4 deadlock on the court.

So a 1977 precedent for charging nonunion members for the benefits conferred by union bargaining was temporarily preserved. (That precedent was set by a 7-2 Republican court).

For the rest of 2016, Senate Majority Leader Mitch McConnell (R-Ky.) refused to take up President Barack Obama’s nomination pending the presidential election.

Confirmation of Obama nominee Merrick Garland would have resulted in a 5-4 Democratic-appointed majority.

Democrats decried McConnell’s refusal as “stealing” the Scalia seat. Actually, it’s more like the Senate powers that be held it in escrow or borrowed it until the GOP could fill it.

Once Trump won, McConnell got to confirm the nomination of nominee Neil Gorsuch.

For backers of the Friedrichs and Janus lawsuits, Gorsuch on the court proved as useful as Scalia would have been.

McConnell thus succeeded in reviving a conservative court majority.

Trump praised the Janus ruling in a tweet, saying it would mean less in political contributions for Democrats. To help make it happen, all he had to do last year was pick from a menu of qualified jurists.

The list of potential nominees presented to Trump for the Kennedy seat includes experienced federal judges deemed conservative. For purposes of the Republican Party, its voters, its congressional majorities, and the White House, any of the qualified candidates will do.


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