Opinion: The Trump-RBG Effect on Texas

Now we know why many White evangelicals supported Donald Trump as president despite his boorish behavior.

Now we know why many liberals and Democrats were in a state of high anxiety upon the death of former U.S. Supreme Court Justice Ruth Bader Ginsburg.

Now we know why many liberals are frantically hoping Justice Stephen Breyer retires before the end of President Joe Biden’s term.

All of these “now we knows” have crystallized in the Lone Star State with this colossal development.

Texas Bans Abortion and Gives Citizens Authority to Enforce Law

The U.S. Supreme Court recently declined, by a 5-4 ruling, to block a remarkably bizarre Texas state law that bans abortion — even in rape and incest cases — after six weeks, and, in effect, deputizes private citizens to enforce it.

It’s a scenario that could ultimately render Roe v. Wade obsolete.

As Minnesota Sen. Amy Klobuchar (D) told CNN, “This decision that they made with the state of Texas is unbelievable. They’re basically taking their own authority and giving it to the populace in the form of, hey, you can be a bounty hunter, (and make) $10,000. You can report a woman who’s trying to go and seek to exercise her constitutional rights.”

Trump Remakes the Federal Judiciary

But let’s start with Trump. Many observers often spoke of the unsightly chaos as the signature of the Trump administration. But he was diligent in one key aspect that looms as his lasting legacy.

That is his remaking of the federal judiciary . . . and not just the Supreme Court.

The nation’s 13 regional federal appellate courts generate the final rulings on most legal appeals in the nation.

Here, Trump’s influence is most prominent. With the help of his powerful wingman, then-Senate Majority Leader Mitch McConnell, Trump appointed 54 federal appellate judges in four years (President Barack Obama had 55 in eight). And Trump’s appointees turned over the balance from majority liberal to majority conservative in three of the 13 regional areas, according to an analysis by the Pew Research Center.

Trump’s Impact on the Federal District Courts System

Also, Trump had a major impact on the federal district courts system, appointing 27 percent of the active judges in the 91 U.S. district courts.

Next up: the Big Enchilada. Neil Gorsuch (54 years old), Brett Kavanaugh (56), and Amy Coney Barrett (49) were Trump’s appointments to the Supreme Court.

Notice the ages. Trump was consistent in appointing younger conservative jurists throughout the federal judiciary.

Yes, Trump left conservatives and Republicans some super-sized parting gifts as he exited 1600 Pennsylvania Avenue.

Death of RBG Gives Way for Barrett and Trump

The key was the death of Ginsburg on Sept. 18, 2020, which gave rise to Barrett under Trump’s stewardship. View it this way: RBG died at age 87 while still on the high court; if Barrett serves until that age, the year will be 2059.

If Ginsburg were still alive, there’s no way the Supreme Court would have upheld that Texas ruling. Remember, many liberals and Democrats — including Obama — tried to coax, cajole, or coerce RBG into retirement during Obama’s second term in order to allow a Democrat president the opportunity to replace her.

A firmly entrenched RBG responded with what amounted to a “Hell, no, I won’t go” answer.

Now, the Democrats reportedly are giving Breyer that “RBG Treatment.” Suppose history repeats and Breyer retires during a Republican presidency. Pound and sound the panic button for Democrats.

Again.

Signs That Breyer May Step Down Soon

For Democrats, there are two signs of hope regarding Breyer possibly stepping down soon.

In an interview with The New York Times that coincides with the release of his upcoming book, Breyer said he didn’t want his liberal legacy on the high court erased by a successor with a polar-opposite ideology.

Also, Breyer, the oldest justice at 83, offered this nugget of insight: “I don’t think I’m going to stay there till I die — hope not.”

In the interim, what can angry, fired-up liberals and Democrats do about Texas?

Elie Mystal, the justice correspondent for The Nation magazine, took a bold but nuanced approach, writing, “Conservatives think they’ve been very clever with the Texas ban, because the enforcement of that ban is not done by the state. Instead, private citizens do the dirty work.”

Mystal, a Harvard Law School graduate, challenged Democrats to “get creative to protect women’s rights. They will need to be willing to challenge norms,’’ even suggesting the step of federalizing abortion providers to protect them from private civil actions in the state.

In other words, Mystal wrote bluntly, Democrats “will need to act like Republicans.”

Some pointed words during some very anxious times triggered by Trump and the death of RBG.

About the Writer

Gregory Clay is a Washington columnist and former assistant sports editor for McClatchy-Tribune News Service. He wrote this for InsideSources.com.

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