Hiding Family Separations Behind a Supreme Court Nomination

On June 27th, seismic shockwaves were sent coursing through the landscape of American society. Amid a rising tide of political animus and public tension, Justice Anthony Kennedy announced his retirement from the United States Supreme Court. Seizing on Kennedy’s revelation—and by appearances looking to deliver a generational win to conservatives, President Trump, shortlist already in-hand, stated that he’d unveil his nominee on July 9th.

While long-speculated, the impending departure of Kennedy, the Supreme Court’s time-tested and popularly-dubbed “swing vote”, has thrown the world of American politics into turmoil. And understandably so, given the all but guaranteed likelihood that the High Court’s ideological center will  experience a fairly pronounced rightward lurch in his absence.

After all, and as many liberal-identifying Americans are acutely aware, Justice Kennedy ultimately anchored the often 5-4 defense of several key left-leaning issues. Seeing visions in which the protections afforded by decisions such as Roe v. Wade or Obergefell v. Hodges may well vanish, Democrats are swiftly lining-up on Capitol Hill to mount a feverish last stand. And soon, the floor of the United States Senate will play host to an acknowledged bare-knuckle confirmation fight, a bruising battle of potentially unmatched political savagery.

But in the face of such momentous and consequential chaos, one wonders if we’re dangerously allowing ourselves to be distracted, permitting ours eyes to fixate on one particularly frenzied scrum while losing sight of the larger skirmish. Perhaps the timing of the president’s nomination wasn’t random—or even a product of expediency. Maybe the eruption of partisan anarchy was intended to be harnessed as part of a more extensive strategic calculus.

One might not have entertained such seemingly sinister suspicions if not for a noticeable behavioral deviation by the president. In offering a concrete date for the nomination of his chosen jurist, the president acted rather uncharacteristically, abandoning his traditional embrace of flexible generalities in favor of one-off rigid specificity.

So it’s strange that a president famous for his unpredictability in all facets of governing would blatantly telegraph his intentions. It’s curious that he’d provide ample warning to congressional rivals he’s long accused of being obstructionists, opponents he surely knew would do everything in their power to loudly blockade his nominee’s confirmation.

But maybe that’s the point, to foster the creation of an attention-grabbing circus.

It’s worth recalling that the president has long been accused of using tumult-spawning tactics as a means of destabilizing entities his administration views as oppositional. To that end, you may very well be asking yourself why the president so purposefully-sparked the outbreak of systemic bedlam. You might be wondering what issue so desperately needs obfuscation that it could possibly justify unleashing a maelstrom of disorder.

You might be surprised that the culprit could be currently resting on the backburner of our collective consciousness, that the act demanding such a noxious smokescreen is the Trump Administration’s grotesquely unpopular—but base-pleasing—practice of separating migrant families.

If we reread Trump’s June 20th executive order, the administration ominously-refrained from abolishing the structural framework responsible for ripping children from their parents’ arms, the “zero-tolerance” policy which requires the criminal prosecution of all adults apprehended for illegally crossing the southwestern border. Moreover, the president’s order stipulated that the permanent cessation of family separations was predicated on two things, Congress passing an immigration reform bill, and the DOJ’s successful petitioning of a federal judge to amend a standing court order—the Flores settlement— which mandates that migrant children can only be detained for a maximum of 20-days.

The former failed almost immediately, and the latter followed suit just prior to the president’s grandiose reveal. And now, there are indications that the Office of Refugee Resettlement, a subdivision of the Department of Health and Human Services, is preparing for a surge in migrant child detentions.

One may not yet see how the July 9th nomination of Judge Kavanaugh coalesced with family separations, but the dark nexus can be found in the president’s timing. On July 10th, the first full day in which the Senate began dominating headlines by becoming a veritable battlefield, the Flores-based timer expired and the separation of migrant families became eligible to resume. And when that punitive tactic is resurrected, we’ll all be too distracted by a drawn-out barroom brawl to notice.

At first glance, you may be thinking, as any reasonable person surely would, that such a muddying effort is just too diabolical to be true. However, to be truly convinced of coincidence’s presence and the absence of ill-intent, you unfortunately must be willing to suspend the faithful exercise of due diligence, trading warranted skepticism for unflinching trust.

You must also be trying to explain why a lifelong member, albeit with a penchant for self-aggrandizement, of the publicly-subdued business class would transform himself into a bombastic pugilist after decades in public view, all of a sudden shining an absurdly bright spotlight on a never-before-seen “Jekyll and Hyde” persona. Proceeding along, you have to be curious as to why the administration has been so opaque and non-committal in its efforts to actually reunite separated migrant families, why it’s proceeding as if it were in a holding pattern. Why it brazenly exhibits a level of ineptitude so egregiously-outrageous that it strikes one as intentional.

Now, you have to be pondering why the administration is rushing at breakneck speed to kick-start a bloodying confirmation process weeks prior to Kennedy’s actual retirement, particularly when his own party could single-handedly confirm a nominee with minimal delay—well in advance of both the primary season’s conclusion and the October start of the Supreme Court’s new term. From there, you have to wonder why Trump nominated a jurist who not only drew sighs from ardent social conservatives, but one that Senate Majority Leader McConnell reportedly cautioned against selecting, having expressed concern that Kavanaugh’s extensive paper trail would likely prolong a tooth-loosening confirmation fight.

In contemplating my superficially-impish claim, you have to ask yourself if someone so vividly-unrestrained would actually scuttle a policy he knows a sizable portion of his base supports, a policy integral to maintaining a wider political front. And if doubt is raised, it becomes necessary to examine the possible depths to which he’d sink to preserve it. In the end, you have to ask yourself whether you believe that the president is innocently-guided by chance and truly incapable of strategic thought, or whether he mindfully-employs deviousness in an attempt to keep his adversaries at a decided disadvantage—perpetually mired in a reflexive state marked by exhausted counter-punching.

(Featured image “United States Supreme Court Building“, by Ken Hammond (USDA), image is in the public domain/cropped from original.)