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When Hillary’s Supreme Court decides redistricting cases

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Voting has begun in the 2016 election as North Carolina opened its (very) early balloting by absentee on Friday. Voting is said to be heavy among the half of Donald Trump supporters who Hillary Clinton has categorized as being in a “basket of deplorables.”

It seems irrational to vote this early in an election cycle in which jarring slanders on millions of Americans arrive suddenly, as well as horrific events shattering the news cycle with alarming but predictable regularity. Pray that another Orlando or Nice doesn’t happen, or an economic panic as in 2008, but don’t bet the house on a placid 57 days ahead.

At a minimum the presidential debates, if they occur, will change some minds or even perhaps millions, but votes already cast can’t be recalled. Voting before all relevant events — and slurs like Clinton’s “deplorables” — are absorbed is not a preferred system, but it’s what we have.

What will not change regardless of events is the vacant seat on the United States Supreme Court, and thus I return to that subject again and again. Perhaps because I have been teaching constitutional law for two decades, the court’s delicate balance is always on my mind. If she wins, Clinton will nominate a “living Constitution” majority maker. Trump is pledged to nominate an originalist. We are certain as to the sort of justice Clinton will nominate and what that will mean, at least in broad strokes and probably with great specificity. There just isn’t doubt about the consequences for the Supreme Court of a Clinton win.

Justice Stephen Breyer told me in my radio studio — five years ago yesterday — that his greatest regret was being in the 4-vote minority when the court’s 5-vote majority refused to push the Supreme Court into the thicket of serving as “umpire” of congressional district line-drawing.

There are scores of areas of law where a “Clinton Court” would upset long standing precedents, among the most troubling being those decisions protecting religious liberty.

But if a second President Clinton makes the next Supreme Court appointment (or two or three), the impact on congressional line drawing will be massive, and will arrive by 2022.

The GOP can expect rulings from the Supreme Court that will place the party of Lincoln in permanent minority status. It takes too much space to explain the case law, but that’s the bottom line. Justice Breyer is a brilliant man, and he would reverse his biggest regret. Expect rulings on the redistricting plans drawn in the aftermath of the 2020 census that, magically, always favor Democratic candidates.

There are a score of areas of law a “Clinton Court” will change (see this column for specifics) but it is from redistricting cases that the permanent hard left lurch of the country will come.

The #NeverTrump forces tell us again and again that we Trump voters cannot trust Donald Trump on his Supreme Court appointees. (An argument fairly recounted and answered here.) But we can be 100 percent, “mortal lock” certain what Secretary Clinton’s justice(s) would do, which is work the “rules” of redistricting to elect Democrats. That’s what liberals do. They make the rules they want, and they enforce them. State choices be damned.

There’s the rub, Republicans, and the payoff, Democrats. Vote now through November like your party’s future, and all that it stands for, depends on this election. Because it does. This isn’t hyperbole. It’s the way the court’s left wing works, and it is what Justice Breyer has written. Those writings have been in dissent thus far. Those dissents will become majority opinions. And because we are a rule-of-law country, thank God, we will sigh and go along with the Justice Breyer-led effort to go where no Supreme Court has gone before: To mandated “non-partisan” line drawing when it comes to congressional districts.

If Secretary Clinton wins, Nancy Pelosi need only hang on for six more years. She’ll have the gavel back in 2022. No matter what happens in 2020. That is it. That’s the rock bottom line.


This column was originally posted on



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