Justice Kennedy’s Legacy May Be Trump's Impeachment - OZY | A Modern Media Company


The swing justice’s departure starts the political dominoes that all but ensure Trump’s congressional trial in 2019.

Susan Del Percio

Susan Del Percio

Susan Del Percio is a New York–based Republican strategist and senior advisor to the Lincoln Project.

The midterm elections are still several months away, but if things go to plan, the next Supreme Court justice will be confirmed by the Senate in September, just weeks away from Election Day. So why is the president downright giddy about appointing a Supreme Court Justice so quickly? Because President Trump always makes everything about President Trump. 

Once again, we see the need for his immediate gratification. Just like the travel ban and the policy to separate children from parents at the border, the timing of the Supreme Court appointment, and its consequences, are not thought out.

Case in point? The border debacle: After weeks of horrible news coverage and pressure from religious and Republican leaders, Trump was forced to sign an executive order reversing his policy. The administration was never prepared to implement the policy or the executive order.

Trump’s support does not transfer well outside of Republican primaries.

Seeing the political problem he created — and has yet to properly fix — Trump worked to change the conversation. As a huge consumer of cable news, he was hearing over and over again that the policy of separating children from their parents “will cause him big problems with suburban women.” He wanted something to appeal to his base, so he pivoted to immigration and ICE, then something better, in his opinion, happened. Justice Anthony Kennedy announced his retirement

Kennedy’s decision to step down from the Supreme Court was his own choice. But based on credible reporting by the New York Times and other outlets, the White House was on the charm offensive, encouraging Kennedy that his legacy would be protected, and that it was the right time to retire.


There is no doubt that at the age of 81, and after 30 years on the Supreme Court, Justice Kennedy has every right to retire, and we all owe him a tremendous debt of gratitude for his service. But by retiring now, the biggest issue for the midterms will be abortion, specifically how a “Trump Court” will reverse Roe v. Wade.

A few months ago, Trump started talking repeatedly about voter turnout at his campaign-style rallies. The writing on the wall? Democrats are more motivated than Republicans. The president mistakenly thought that by playing to his base, turnout for him would increase. There are two key problems with that. First, Trump isn’t on the ballot this November, and it has been proved that Trump’s support does not transfer well outside of Republican primaries. The other flaw? While it’s true that Republicans will turn out over certain issues, Democrats in response to those same issues will turn out in even higher numbers.

With the issue of Roe v. Wade all but on the ballot this November, it is extremely likely to increase suburban turnout by double digits among women, independents and Democrats who stayed home in 2016. This will lead to the defeat of incumbent Republicans from swing House districts. It’s true that in red states Republicans will turn out over abortion rights, but that’s not where the swing districts are.

The Democrats need to win 23 congressional seats to take back the House. According to the esteemed Cook Political Report, an independent, nonpartisan newsletter, there are 24 “toss-up” seats and 34 “lean” Democratic or Republican seats in play. In a typical midterm election, that would mean the party not in power had a very good chance of winning the majority. By injecting the issue of women’s reproductive rights into an already highly motivated liberal base, this will all but secure a Democratic House and a majority looking to impeach the president.

That doesn’t mean he will be removed. For the Senate this year, Republicans are defending nine seats, compared with the Democrats defending 25 (Sens. Bernie Sanders and Angus King are independents but caucus with the Democrats). Of those 25 Democratic seats, 10 of them are in states that Donald Trump carried in 2016. So it’s a pretty safe bet that the Democrats will not pick up the two-thirds majority to convict the president.

On June 27, 2018, Supreme Court Justice Anthony Kennedy resigned and all but ensured that on Jan. 1, 2019, the U.S. House of Representatives will initiate impeachment proceedings against President Donald J. Trump — another self-inflicted injury, Mr. President.

Susan Del Percio

Susan Del Percio

Susan Del Percio is a New York–based Republican strategist and senior advisor to the Lincoln Project.

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