How Justice Kennedy's vacancy will change the Supreme Court

close

Video

How Justice Kennedy's vacancy will change the Supreme Court

From abortion to gay rights, the Republican appointee's legacy is examined on 'Journal Editorial Report.'

This is a rush transcript from "Journal Editorial Report," June 30, 2018. This copy may not be in its final form and may be updated.

PAUL GIGOT, HOST: Welcome to the "Journal Editorial Report." I'm Paul Gigot.

And we begin this week with a dramatic end to the Supreme Court's term. Justice Anthony Kennedy announcing his retirement Wednesday, giving President Trump his second vacancy to fill in a once-in-a-generation chance to cement conservative control of the nation's highest court. The 81-year- old Kennedy stepping down after 30 years and setting up a confirmation battle in the Senate just before the midterm elections.

Let's bring in Wall Street Journal columnist and deputy editor, Dan Henninger, columnist, Bill McGurn, editorial board member, Allysia Finley, and editorial features editor, James Taranto.

James, what difference is it going to make for the Supreme Court without Anthony Kennedy?

JAME TARANTO, EDITORIAL FEATURES EDITOR: Anthony Kennedy was an unusual member of the courts, particularly after Justice O'Connor left. He was the most heterodox of the nine justices. I use the word "heterodox" advisedly. He was often called a moderate. He's really not a moderate. He has very strong views on subjects, but they don't always line up with the traditional liberal conservative dichotomy. He's very much in favor of gay rights, he's very much in favor of free speech, whether it's a liberal free speech argument or a conservative free speech, so he was something of a wild card on the court. Most likely, the new justice will be more apt to line up with the other four Republicans --

(CROSSTALK)

GIGOT: Well, that could be the case.

Although, Dan, it's interesting, because if you look at his First Amendment jurisprudence, for example, Kennedy was very, very strong. Wrote the Citizens United decision, for example, on campaign finance and free speech. And there's no guarantee that his replacement, even if a so-called conservative, is going to be as strong on, say, the First Amendment or even on states' rights.

DAN HENNINGER, COLUMNIST/DEPUTY EDITOR: Well, that's right. All of these nominees when it comes down to the Supreme Court, intelligent person, they have their own minds. By and large, they are able to identify whether they will vote most of the time with conservatives or the liberals. But there's no real predicting. And a lot of these issues have been in play. I think, the First Amendment, going forward, is going to be a big one as people begin to argue that the First Amendment should give weight to things like hurtful speech. In the last term, Justice Gorsuch, in one of his interesting concurrences, said he would like to revisit the Fourth Amendment on searches and seizures. He thinks it's very unclear. He thinks the court ought to do some housecleaning there. It's a little hard to predict, other than as James suggests, probably the next nominee will align with the conservatives. Almost certainly.

GIGOT: All right, Allysia, let's talk about the politics of this. Already, we are seeing the Democrats react with horror at this place. They are still very sore over Merrick Garland not getting a vote in President Obama's last year in office. But Congress has confirmed many, the Senate has confirmed many judges in midterm years.

ALLYSIA FINLEY, EDITORIAL BOARD MEMBER: I think that's right. Elena Kagan was, David Souter. You can go to Justice Scalia. Several nominees from both parties have been confirmed during a midterm year.

GIGOT: The filibuster is no long --

FINLEY: Right. But you can blame Harry Reid for that. In 2013, because he wanted to basically pack the D.C. circuit so that they could reinforce the Obama regulations.

GIGOT: That was for appellate courts.

FINLEY: That's right.

GIGOT: Then with the Gorsuch nomination, the Republicans decided to get rid of it for Supreme Court nominations, but that's, in part, because the Democrats opposed Gorsuch.

FINLEY: Right. They didn't want to allow confirmation. That's because, partly -- well, I think you saw Manchin, Donnelly and Heitkamp essentially did vote --

GIGOT: Three Democrats.

FINLEY: Three Democrats did vote but they would not have allowed Trump to get any nominee onto the courts.

GIGOT: They supported Gorsuch, and they wouldn't have unless the Republicans had shown in advance that they had the votes to confirm.

FINLEY: That's right.

GIGOT: I think the Democrats would have been a lot smarter to support Gorsuch and retain the filibuster for this nomination.

BILL MCGURN, COLUMNIST: Absolutely. They have nothing going in. A couple of things. One, the fact that they are reacting so strongly tells us the Supreme Court probably looms too large in our life.

GIGOT: Could not agree more, Bill.

MCGURN: I mean, and the fact that Justice Kennedy often substituting his personal beliefs for the law. That's a problem, whichever side comes out. I think one of Justice Kennedy's great contributions, though, in those decisions where it went south was producing some of Justice Scalia's greatest dissent and most memorable phrases about, you know, fortune cookies and so forth.

But I think that the reason the Supreme Court especially looms large for the left, it's their preferred legislature. Right? They would rather work through and get five justices to put something through that couldn't make it through the Democratic system, especially on state-by-state basis. And that's why they are so very upset at this.

GIGOT: James, our friends on the left are already saying this is going to be the end of abortion rights, the end of gay marriage, but I really do not see that happening, even with a fifth conservative vote. I think, certainly, Chief Justice Roberts will be very cautious about overturning any of these --- any of those precedents.

TARANTO: I think gay marriage is here to stay. It's never going to be overturned. How would you undo all of these marital contracts that have already been entered into by the people all over the country? On abortion, I think it's quite possibly that eventually Roe v. Wade will be overturned. I think it will take years. It will probably take at least six justices. I think they will proceed cautiously.

GIGOT: Yes, they will proceed cautiously. But, James, I'm not sure even the conservatives on the court will overturn it at this stage, Roe v. Wade. It would be very, very disruptive. I don't know.

Dan, what do you think?

HENNINGER: Yes. I think that's right, especially John Roberts being chief justice. He's very aware of the court's reputation. I think that part is overblown. Make no mistake, the liberals are going to elevate this issue during the battle over abortion rights, women's rights, minority rights, health rights. They will try to make it a big political issue. The problem is, that could animate conservatives and Republicans to turn out in November. I think the Democrats are in a very, very tough spot with this nomination, politically.

GIGOT: All right, thank you all.

When we come back, from free speech to affirmative action, a look at Anthony Kennedy's legacy and how the Supreme Court is likely to change with his retirement.

(COMMERCIAL BREAK)

GIGOT: A Ronald Reagan appointee, Justice Anthony Kennedy was at the center of many court's biggest decisions over the last three decades, casting the key vote in landmark cases involving abortion, affirmative action, gay rights, guns and campaign finance.

Ilya Shapiro is editor-in-chief of the "Cato Supreme Court Review." I spoke with him earlier about the Kennedy legacy.

(BEGIN VIDEOTAPE)

Ilya Shapiro, welcome.

Let's talk about Justice Kennedy and his legacy. You wrote this week that while you ended up agreeing where justice came out on a lot of cases, you disagreed with the way he got there. Explain that.

ILYA SHAPIRO, EDITOR-IN-CHIEF, CATO SUPREME COURT REVIEW: Yes. Part of the rule of law isn't just getting the right results, but the reasoning matters. That's why the Supreme Court explains itself so people can follow how the law develops, what it means, what the Constitution means. And Justice Kennedy didn't follow kind of conventional jurisprudential methods, be that originalism and textualism, be that legislative history or the purpose of a given law or anything in particular. People tried to evaluate -- I certainly did -- how he got to the answer in a lot of different areas of law, but often there was a simple inscrutability. He seems to find, for example, the equal dignity clause with respect to gay rights, or the idea that a civilized society doesn't pass laws that harm people, for example, rather than importing either a national rights theory of the law or involving constitutionalism or anything. So, yes, I agreed with him a lot. He was probably the most Libertarian justice, although that's a low bar. But a bit of a black box as well.

GIGOT: And I agree with you, I think, on his racial jurisprudence. For example, he didn't give clear guidance, even though he was swing vote on issues like university racial preferences. But on the First Amendment, for example, I think that he had actually a very clear sense of what was legal and constitutional under the First Amendment. He provided the key fifth vote. For example, he wrote the opinion on Citizens United. And had a lot of these First Amendment cases gone the other way, his vote, we would have a diminished free speech right.

SHAPIRO: Yes, that's one of the exceptions that proves the rule that I was talking before. Absolutely. Justice Kennedy was actually not the swing vote on First Amendment cases, Citizens United or otherwise. He was the most pro-free speech justice that we've had in quite some time, maybe ever. You saw that in several opinions this term, this past week, whether with the compelled speech with public sector unions or crisis pregnancy centers or Masterpiece Cake Shop, for that matter. Very solicitous First Amendment protections.

GIGOT: Let me push back again. I think, if you want to describe Kennedy's jurisprudence, one way to do it would be that he a kind of jurisprudence of personal liberty that is -- that led him to, for example, the social left on abortion rights and gay rights, but on free speech and gun rights and even property rights, led him to what we would call the right. But that was the consistency of the core of his jurisprudence. What do you think about that?

SHAPIRO: Again, you're trying to make consistent claims across issues and I don't think it holds up. You mentioned property rights. He was one of the votes for the government, for the development agency in Kelo v. New London, that you can take property from a private business or individual and give it to another private actor. And so, again, it's harder to contextualize across issue areas. Certainly, he was for personal liberty in many ways, but not in the way that Libertarian, not in the way that Cato Institute or other classical liberal organizations or scholars might like. He didn't apply national rights theory or any other way that you might describe. Like Gorsuch, like Neil Gorsuch, the newest justice, I think is dedicated to. And so it really depends on how it fit into his view of the world. In certain cases, the Constitution's structural protection for liberty, be that federalism or separation of powers, were very important. And he was a key vote on the Obamacare case, for example, fully in line with striking it all down. But in other examples, Raich versus Gonzales, the federal government, yes, apparently can regulate plants that you grow in your own backyard. That was a medical marijuana case.

GIGOT: Right.

(CROSSTALK)

GIGOT: All right, fair enough. I agree with you, there's some inconsistency there. But on the balance I would say he did strike -- he did tend to support cases that helped a clear definition of the separation of powers.

But I want to talk about Neil Gorsuch. His first year on the court, very important term. How do you think he did?

(CROSSTALK)

SHAPIRO: I think he did really well. He very quickly has become my favorite justice. He's the only PhD on the court, and his approach is very philosophical, very first-principles oriented. You saw that, for example, in his opinion in Carpenter v. United States, relating to whether the police need a warrant to get cell phone location data. And although, technically, Gorsuch was dissenting from that ruling against the criminal defendant for the government, that dissent was a concurrence in all but name. He had some technical reasons there. But calling for a fundamental rethink of our Fourth Amendment jurisprudence not to be tied to 50-year-old precedent about the reasonable expectation of privacy, which, after all, is judge made. Even more than Justice Thomas who focused on property-right aspect of the Fourth Amendment, Gorsuch really looked at, have you taken steps to protect your personal effects and papers, whether that's digital, contractual, property or otherwise. You can see that again and again in textual and first-principle constitutional cases. He really wants to go back to that well.

GIGOT: One question about the future of the court after Justice Kennedy. A lot of people on the left are saying that Roe v. Wade, abortion rights are in jeopardy with a new justice. Do you think that that --- that Roe v. Wade would really be overturned at this stage?

SHAPIRO: Not Roe v. Wade itself or Planned Parenthood v. Casey, which was, of course, Kennedy's standard about the undue burden and all that. But with John Roberts presumably moving to becoming the median justice --

GIGOT: Right.

SHAPIRO: -- which is the case we have another Gorsuch, he's an Incrementalist and a Minimalist, so I doubt that he would want sweeping over-rulings of a whole slew of controversial precedents. But he would be more likely to uphold restrictions. So some of the restrictions that have been overturned or struck down in the last little while on abortion and other things would be upheld without necessarily overturning some of these long-standing precedents.

GIGOT: And gives state a chance to regulate a little more but upholding the fundamental right.

Ilya Shapiro --

SHAPIRO: I think that's right.

GIGOT: -- thank you very much for being here. Appreciate it.

SHAPIRO: My pleasure.

(END VIDEOTAPE)

GIGOT: Still ahead, a blockbuster end this week to a banner Supreme Court term. From First Amendment rights to public union workers to President Trump's travel ban, our panel looks back at Justice Neil Gorsuch's first year on the court and Anthony Kennedy's last.

(COMMERCIAL BREAK)

GIGOT: Even without the Kennedy announcement, the Supreme Court this week wrapped up what can only be described as a blockbuster term, with the justices handing President Trump a big win in his so-called travel ban, and public-sector unions a big defeat in their effort to collect fees from non- union workers.

We're back with Dan Henninger, James Taranto, Allysia Finley, and Bill McGurn.

Bill, what's your big takeaway from this?

MCGURN: Well, I think we had some blockbuster cases. Janus alone is a huge one.

(CROSSTALK)

GIGOT: This is a ---

(CROSSTALK)

MCGURN: On the funding of whether public unions can coerce dues from people who don't want to pay them. So this is a huge victory. I think it's a victory subsequently for the First Amendment. But it's a huge defeat for a lot of the Democrat interest groups because they've used this money that they were able to coerce from people in politics.

I think, likewise, the First Amendment case on the pregnancy centers in California. They're not going to have to be compelled to give out abortion information and so forth. The travel ban, of course. I think the travel ban is in a separate category, because I think, if it was anyone but President Trump

(CROSSTALK)

MCGURN: -- that wouldn't have even been an issue. It might not have even got to the Supreme Court.

What's interesting about this with Kennedy is, normally, he's known to be the fifth guy voting with the liberals on a case. There were nineteen 5-4 decisions and none of them in this term did Kennedy join with the liberals for a majority.

GIGOT: Any other cases that you'd cite, Allysia, major cases this year?

FINLEY: I think the Carpenter decision, which came out last week, where Justice Roberts sided with the four liberals in expanding, basically, the Fourth Amendment to cell phone records and cell phone data. And the way he did so was kind of hazy and it could be extended. But this has never been this case.

(CROSSTALK)

FINLEY: The Fourth Amendment has never applied to third-party data. So he set a new precedent that could really make it harder for law enforcement and national security to do their job.

GIGOT: Dan, what do you make of Neil Gorsuch's first term?

HENNINGER: I thought Gorsuch began to establish himself as a clear and independent voice. And as Ilya Shapiro was suggesting in the interview, Neil Gorsuch, he's a young -- I think, Paul, he's a young member of the court. Probably, he will be joined by another young member of the court. And some of these younger judges, I think, feel that, over the years, the Supreme Court has become muddled. A lot of the law is simply unclear in areas like the Fourth Amendment, possibly, in the First Amendment as well. And I think he's going to spend a lot of his time going forward kind of being the voice of clarity about the Constitution on the court. And I wouldn't be surprised if the new judge joining him, say, Amy Barrett, for instance, from Notre Dame, if perhaps she's the nominee, Brett Kavanaugh, on the appellate court in D.C., are going to join him in that effort.

GIGOT: James, what about the liberals this year? They won a couple of cases, certainly with Carpenter. What do you make of the divide that I think you see emerging between Breyer and Kagan, on the one hand, and then Sotomayor and Ruth Bader Ginsberg on the other?

TARANTO: Yes, this divide, we have seen it for a while. In the Obamacare case, in 2012, Kagan and Breyer joined Roberts and the conservatives in striking down the medical -- limiting the Medicaid expansion. So this is something that we have been seeing for a while. Sotomayor and Ginsburg, particularly Sotomayor, seem to be much more about issuing a cri de coeur in favor of their vision of equality or what have you. And it is an interesting divide. It's not entirely homogeneous.

GIGOT: Well, and I think that with Kagan, the calculation may be that she's willing, in particular --- she's very shrewd. She may be willing to go with the chief justice to form a majority as long as it is a fairly narrow decision. I think the Masterpiece Cake decision, where the baker got the right not to bake the cake, wedding cake for --

(CROSSTALK)

TARANTO: Or the administrative law case, which she wrote a 6-3 ruling with the other three liberals on the other side.

(CROSSTALK)

GIGOT: Exactly. That's correct.

But in both of those cases, you had a relatively narrow ruling, and not a landmark ruling on the fundamental constitutional principle. Do you agree with that?

TARANTO: Yes. And Masterpiece Cake Shop was a Kennedy ruling. And this was a case in which Kennedy reached a middle-ground result because he was balancing two values that he believes very strongly in, gay rights, on the one hand, and freedom of conscious on the other.

GIGOT: Any big takeaway from you, James, on this term? Any other takeaway?

TARANTO: I think that the biggest thing is these two cases that came out this week, the Janus case on union agency fees and the NIFLA v. Becerra case on crisis pregnancy centers, these were two cases that the court said very strongly you cannot require people to say things that they don't believe, you can't require them, in effect, to take an oath against their conscious. And that was an important thing that needed to be said.

GIGOT: Dan, is the chief justice going to emerge as the swing vote, do you think?

HENNINGER: Yes. I don't think there's any question about that. And it's going to be remarkable because a chief justice normally is not the swing vote. And that puts Justice Roberts in a very powerful position both distributing cases and maybe deciding, ultimately, which way the court is going to go in the future.

GIGOT: You agree with that?

MCGURN: I agree with Dan. And I think part of the reason I think the chief has -- he would like fewer 5-4 decisions, even if the price for that is narrower and so forth. And the chief has a lot of latitude about taking cases himself. So I think we will see interesting maneuvers. But,, look, I hope, at the end of the day, it means that a lot of cases that now get to Supreme Court, should go back to the American people to decide at the ballot box.

GIGOT: All right, thank you all.

Still ahead, the president takes on Harley-Davidson after the motorcycle manufacturer announces its plans to move some production overseas. So as retaliation begins for the Trump tariffs, will other swing-state industries follow? We will ask Harley's home-state Senator Ron Johnson, next.

(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: So Harley-Davidson is using that as excuse, and I don't like that because I've been good to Harley- Davidson.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: Harley-Davidson is a true American icon, one of the greats. And I see it so often, wherever I go, whenever there's a motorcycle group, often times, it's a Harley. And the sound of that Harley is a little different, I have to tell you. It's really good. So thank you, Harley-Davidson for building things in America.

(END VIDEO CLIP)

GIGOT: That was President Trump last year praising Harley- Davidson as an American icon. The president striking a decidedly different tone this week after the motorcycle maker announced it would move the production of its Europe-bound bikes overseas, a result of retaliatory tariffs enacted by the European Union last week. Mr. Trump accusing Harley of using his trade policies as an excuse, and tweeting Tuesday that the move would be the beginning of the end of the company.

Joining me now is Republican Senator Ron Johnson, of Wisconsin, home of Harley-Davidson's headquarters.

Welcome, Senator.

So you're a businessman. You were before you got to the Senate. You know what it takes to make money. What do you make of Harley-Davidson's move of some production overseas?

SEN. RON JOHNSON, R-WIS.: Well, they are having to remain competitive and we are facing tariffs on imported products into Europe from 6 percent up to 31 percent when they are facing raw material steel price increases because of the generalized tariffs on steel and aluminum. They can't sell their products. They are going to lose the markets. They will lose the sales. And they would even lose the workers here in Wisconsin because they don't have the sales or they have the opportunity to produce these things overseas where they can buy steel at world market prices and that could charge the tariff going to Europe. They are put in a horrible situation. They're making rational economic decision. And I heard members of this administration talk about there's going to some short-term pain for long-term gain. And no doubt, some of that short-term pain would be temporary, but some will be immediate and permanent. And this is certainly one of the decisions. I talked to the CEO of Harley, and he said maybe within a couple of months they could reverse decision, but if this doesn't get taken care of, it's going to be a permanent loss of jobs. And it's very unfortunate.

GIGOT: Yes, because if you're making a long-term investment decision in the tens of millions, maybe a hundred million dollars, you're not reversing that once you start to make that decision.

JOHNSON: Paul, I also talked to -- a woman came in with a group of people who supplied the trucking industry. And she has a manufacturing business she's been in the building for 20 years, about $50 million worth of sales. She told me if this isn't fixed within the next few weeks, next couple of months, she's out of business in about three months.

(CROSSTALK)

JOHNSON: Again, a permanent immediate pain.

GIGOT: OK, some of your colleagues have been talking about trying to take back some of the power that Congress has given to the president, all presidents on trade for many decades. Bob Corker was offering an amendment in the Senate to restrict the definition of national security under Section 232. Do you support that effort?

JOHNSON: I was one of the early co-sponsors. I'm not sure we have to do it immediately, but I think certainly, over time, Congress must regain so much of the power. And this is just one of those areas in terms of tariffs. We need to reclaim that power. Let's face it, we need an executive to negotiate trade deals, but it should come -- those should be negotiated with full consultation. And the deals should come back to Congress for ratification and approval.

GIGOT: You know, Senator, I've talked to your colleagues about this. I would say that, by far, the majority of the Republicans agree with you on this. And yet, your leadership has not wanted to have a vote. They did move on this, this week, but it was blocked by Democrats, Sherrod Brown on the floor. Are more of your colleagues getting concerned about this and its economic impact?

JOHNSON: Sure, because they also had businesses, like I just -- whether it's Harley-Davidson or one manufacturer, who I can't name because they fear retaliation. There are 30,000 waivers have been requested by the Commerce Department of these tariffs. Those are 30,000 situations where people are, again, experiencing the short-term pain. This is not Republicanism. This isn't conservative free-market economics when we literally have, what, now Commerce Department operating which business is going to succeed and which is going to fail. No, more and more Republicans Senators will be hearing from constituents and they are going to be hearing of these situations where is it's going to be immediate and permanent pain to this long-term strategy.

GIGOT: So what recourse do you have in Congress to actually make the president change course, I guess, other than speaking up? Is there any recourse you have?

JOHNSON: We really don't, because even if we were to pass this in the Senate, I'm not sure it would pass in the House. And it would certainly be vetoed. I don't know if we would be passing measure with a veto-proof majority. All we really can do is continue to point out these real-world examples of the immediate and permanent pain caused by this trade war.

GIGOT: All right, let me ask you a question before we go about the president's summit with Vladimir Putin. Is it a good idea for him to meet with Putin? And what -- do you have any advice for the president?

JOHNSON: Well, on Sunday, I'm flying to go Moscow myself and I'm going to join the delegation of, I think, four or five other members of Congress. We need to be talking to -- to all of our adversaries. Russia has 7,000 nuclear weapons. Their aggression is destabilizing so many areas of the world. I sure wish Russia was no worse than a friendly rival as opposed to the unfriendly adversary it is right now. I'm for talking to people and try to turn down the heat and try to find areas of cooperation.

GIGOT: OK, but are you a little worried about any kind of a deal that, for example, would cede Crimea or eastern Ukraine to Russia?

JOHNSON: Absolutely. We need to address Russia with strength and resolve, don't let it put any pressure until we actually see verifiable change in their behavior and real cooperation. Same thing is true with North Korea as well. We have to treat both of these adversaries through a position of strength and resolve.

GIGOT: All right, good luck on the Russia trip. Thanks for coming in.

When we come back, a stunning upset in the New York primary. Ousts a long- time Democratic leader. What Alexandria Ocasio-Cortez's victory could mean for the party's ability to govern, next.

(BEGIN VIDEO CLIP)

REP. NANCY PELOSI, D-CALIF., HOUSE MINORITY LEADER: We are excited about another generation of people coming into the Congress.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

GIGOT: A stunning defeat Tuesday for the fourth-ranking Democrat in the House. Ten-term New York Congressman Joe Crowley, who was widely considered a top candidate to replace House Speaker Nancy Pelosi, was soundly defeated in Tuesday's primary by a 28-year-old newcomer, Alexandria Ocasio-Cortez, former community organizer for the Bernie Sanders campaign and a self-described Democratic Socialist.

We are back with Dan Henninger, Allysia Finley and "Wall Street Journal" editorial page writer, Kate Bachelder Odell.

So, Allysia, how did she do it? How did Cortez do it?

ALLYSIA FINLEY, EDITORIAL BOARD MEMBER: She ran on the progressive platform. She ran on single-payer health care, a federal jobs guarantee, and abolishing ICE, which is exactly a new one here.

GIGOT: This is immigration enforcement.

FINLEY: Immigration and Customs Enforcement. And she went down to the border, made an issue of Trump's family separation policy. And meanwhile, Crowley really took the race for granted. He didn't really -- he had a 10- to-one funding advantage. But I don't think he saw this coming.

GIGOT: If he had 10-to-one funding advantage, he spent a lot of money on the race, so he must have thought that there was a real contest here. Has the district changed, was there a low turnout?

FINLEY: There was high progressive turnout. And I think especially among young people, she did really well, in an area where you have a lot of young Millennials moving in. And I think they really thought, we need to have generational change. And she played to, you know, the identity politics. She's Puerto Rican, campaigning against a white middle-aged man.

GIGOT: All right. We white middle-aged men just have a real problem these days.

Kate, what message are the Democrats who are back in Congress going to take from this?

KATE BACHELDER ODELL, EDITORIAL PAGE WRITER: Well, it's interesting, Paul. There's been talk back and forth in the Democratic Party about whether this is aberration or a sign of a larger problem for Democrats, right? I tend to think that there are some unique characteristics to this district and how it's changed over the past 20 years since Crowley started representing it that do make it unique. But also, it really just energizes the movement. And Cortez said on her victory night that they need a whole caucus of Democratic Socialists. And I think she's committed to making that happen.

GIGOT: And Ocasio-Cortez, Dan, I think is -- she will put scare in so many other Democrats because, even if there are some aberrational characteristics of this district, unique characteristics, that doesn't mean that they will still not say, hey, I don't want a primary like this happening to me.

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: That's right, Paul. I do think her victory is probably a little bit overstated. I think Joe Crowley lost touch with his constituents. But the liberal press is suggesting this will have big implications in the House of Representatives. They're arguing that Nancy Pelosi, who would be speaker if they won in November, is old, and her number two, Steny Hoyer, from Maryland, is a white male, and this means that the House is becoming more diverse, meaning more women and more minorities. And even suggesting that Nancy Pelosi could face a challenge, say, from a member of the Black Caucus.

GIGOT: Kate, do you think this signals more polarization in the House if the Democrats do take control in November, which I think there's a very good chance they will?

ODELL: Oh, absolutely, Paul. I mean, some things she's proposing are things that all Democrats really want, but some are afraid to commit to, like large tax increases to fund Social Security. But the only thing I'd ask of her list of policy items was a one-time large student loan forgiveness round. Some of these things will get more attention as that problem becomes more acute. And I do think this is just going to create a crack-up.

GIGOT: You know, it's interesting, Allysia, you follow California politics and New York state politics, and already you've seen governors of New York State, Andrew Cuomo, very different now in eight years after he first ran in 2010 as a moderate. And Gavin Newsome, the lieutenant governor, the Democratic candidate for governor in California, now much further left. So this primary suggests -- I think it's an indication, another indication that the Democrats are moving left.

FINLEY: I think that's right. You also have what we talked about earlier, the Janus case. I think one of the reasons that we've got Gavin Newsome, and we've seen made Andrew Cuomo moved left was to gain public union support. You wonder, well maybe there'll start to moderate, but there are other cultural shifts in the party pushing left, especially with the resistance to President Trump.

GIGOT: Now, Dan, you know, a lot of Republicans say, well, they are moving too far left, this is going to cost them elections. That's what the British Tories said about Jeremy Corbin when he took over the Labour Party, and he almost won the last election.

HENNINGER: Yes, the Republicans cannot rest on their laurels now. They will have to take the fight to the Democrats. They make these highly rhetorical arguments about stalling part of health care system, inequality, and these are argument that is the Republicans will have to address. They can't assume that the Democrats are self-destructing. That's not going to happen.

GIGOT: All right, thank you, all.

When we come back, a compromise immigration bill goes down in the House as the debate over the border taking an ugly turn. So is there a path forward on this divisive issue. And will the left's rhetoric help or hurt them in the midterms?

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Good morning.

(SHOUTING)

UNIDENTIFIED FEMALE: (INAUDIBLE)

(SHOUTING)

UNIDENTIFIED FEMALE: Or actually.

(SHOUTING)

UNIDENTIFIED FEMALE: Bad morning.

(SHOUTING)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

GIGOT: Republican leaders suffering another setback this week with the House soundly defeating a so-called compromise immigration bill. The measure getting 121 votes, far short of the 218 needed for passage. That defeat coming as the debate over immigration takes an uncivil turn with members of the administration being heckled at their home and at public venues. And a Democratic congresswoman telling supporters to harass officials at department stores, restaurants and gas stations.

We are back with Dan Henninger, Bill McGurn and Kate Bachelder Odell.

Kate, why did the immigration bill fail so miserably?

ODELL: It's a good question, Paul. So 120 votes is a pretty embarrassing defeat. But there are a lot of authors of this failure. One of them was President Trump, who did not go out and campaign for the bill and try to get it passed. There are other authors, too, like the Freedom Caucus, who have moved the goal post on what they are interested in getting in exchange for a deal on DACA and whose own bill, the Bill Goodlatte bill, failed also on the floor. But the Democrats have been cynical about this discussion as well.

GIGOT: They want an issue. Is there -- in November. Do -- they think it will help turn out of their voters.

But is there any chance of anything happening on immigration between now and election, for example, on family unification at the border?

ODELL: The Republicans have been working on a bill on that issue but it's not clear where Trump is on signing it at this point. And that's one reason that it's been delayed and has not come to a vote yet or even introduced. But -- so I don't see much opportunity unless there's change. Because I think one thing that we were discussing is when voters know that both parties are being cynical about having political issue instead of resolving a real problem for young adults, who some of them are in the military, I think that's when they start to vote for people who are more radical.

GIGOT: Dan, where does that leave the moderates, so-called moderates who are pushing a discharge petition to be able to consider abill taht would give legalization for the DREAMers but also have tougher border security? This kind of leaves them high and dry.

HENNINGER: I would say it leaves them on the bubble, Paul. That's why they wanted the vote. Had this incident down at the border with the separating mothers and fathers from children not happened, I don't think this would be a big issue in November. It is now. And the issue is there are between 20 and 24 Republicans who is are in very tight battles for their seats. These are not sure Republican seats. And they have to wonder whether the moderate, Independent voters in their districts are going to punish them for what has happened at the border. That's why they wanted this vote. So it's going to be an issue in November for about 20 Republicans.

GIGOT: Both parties. Trump seems to think it's a good issue. Republicans, Democrats think it's a good issue for them. We are seeing such a breakdown of civility on immigration. It's more polarized than ever. What do you make of this call to harass --

BILL MCGURN, COLUMNIST: Well, I think that's the one thing that could turn from the Democrats to Republicans.

(CROSSTALK)

MCGURN: Yes. I don't think people want to see that. Look, it's intractable in the sense there are Republicans that don't want any compromise because they feel it would give a path to citizenship or amnesty, right, however you define it.

GIGOT: Deport --

(CROSSTALK)

MCGURN: They're willing to live with status quo rather move an inch on -- in this direction. Democrats I think have long preferred the issue. It allows them to call the Republicans racists, the status quo. I think, politically, that does benefit -- the status quo does benefit the Democrats that way. And I think that now we've reached a point where it's hard to get any deal before November.

GIGOT: You saw, Dan, where Nancy Pelosi and Chuck Schumer, the Democratic leaders in Congress, they basically said, knock it off, Maxine Waters, stop it, we don't think this helps us to have that kind of a call for harassment.

HENNINGER: Yes, they've got -- the question is, can the Democrats control their left, because the moderate left are into mass protests, they're into disruption. They invaded a restaurant in Washington, D.C., where Homeland Security Secretary Kirstjen Nielsen was having dinner, screamed at her in front of the other dinners, went to her house and screamed at her. This sort of thing makes a lot of voters uncomfortable. They think it raises the law-and-order issue. And the Democrats, I think, would like to tamp that down. They want the protests, they want opposition, but they don't want that kind of violence beneath the surface.

MCGURN: Yes, I agree with Dan entirely. Except I would say this. What's shocking is how many Democrats don't condemn what Maxine Waters is saying. And how tepid some of the advice against her is. I think that's a new change. I think Maxine Waters used to be seen kind of at the fringes, and now a lot of people are afraid of her in her own party.

GIGOT: Kate, quickly, who do you think has the advantage on immigration going into November?

ODELL: I think it hurts both parties, but I think it will hurt Republicans worse. And I think most Republicans understand that, other than a small island of them.

GIGOT: Yes, because they are the party in control and they haven't solved the problem.

All right, we have to take one more break. When we come back, "Hits & Misses" of the week.

(COMMERCIAL BREAK)

GIGOT: Time now for our "Hits & Misses" of the week -- Bill?

MCGURN: A hit to Benjamin Netanyahu. After Iran's good performance in the World Cup by its soccer team, he did a video applauding them for their play. But linking it to the courage of the Iranian people that are now demonstrating on the streets in Iran. I think it is an odd time when the prime minister of Israel has more confidence in the people of Iran them their own government.

GIGOT: Thank you, Bill.

Kate?

ODELL: Paul, this is a hit this week for Charles Rettig, who is poised to be nominated to run -- who is nominated to run the IRS. This week he said in his confirmation hearing that he was committed to running a top-to- bottom unbiased IRS. This agency has had some amusing problems lately, like the tax Web site blowing up on Tax Day. But also, more serious issues like the attacks targeting conservative groups. And especially important, because we have a new tax law that needs implementation. Cheers to this agency getting some long-overdue and new political leadership.

GIGOT: All right.

Allysia?

FINLEY: This is a hit to Federal Judge William Alsup, out of San Francisco, a Bill Clinton appointee, who this week threw out a lawsuit brought by San Francisco and Oakland against oil companies for causing climate change. The judge even went so far as to say that there have been benefits from fossil fuels. Congratulations for speaking truth to liberals.

(LAUGHTER)

GIGOT: All right.

Dan?

HENNINGER: A big miss to the American Library Association. It has rescinded an award it gave year ago to Laura Ingalls Wilder, the author of "Little House on the Prairie," because it didn't like the way she depicts Native Americans. It says she doesn't do it with enough inclusiveness, integrity or respect. Then it said, this should not be construed as an act of censorship. Paul, the rest of us do not have to participate in that kind of disgusting doublespeak. That is censorship.

GIGOT: How long is the list, Dan? I mean, we have Mark Twain, "Huckleberry Finn." You can't read that. It is getting longer all the time.

HENNINGER: It is getting longer all the time. It is beginning to look like book banning to me.

GIGOT: All right.

And remember, if you have your own hit or miss, be sure to tweet it to us, @JERonFNC.

That is it for this week's show. Thanks to my panel. Thanks to all of you for watching. I'm Paul Gigot. Hope to see you right here next week.

Content and Programming Copyright 2018 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2018 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.