The end of the Supreme Court term looms, and with it the prospect — the terrifying prospect — of a retirement. Specifically, the retirement of Justice Anthony M. Kennedy, who will turn 81 next month and is the longest-serving current justice, named to the high court almost 30 years ago.
So if Kennedy is inclined to retire, it is hard to begrudge him that choice. But his departure would be terrible for the court and terrible for the country. It could not come at a worse time. Any court vacancy these days, under a president of either party, triggers a battle between liberal and conservative forces. Kennedy’s retirement would unleash nomination Armageddon, given the feral political environment and the pivotal role he plays on the closely divided court.
To understand the impact of Kennedy’s departure, just look back to his selection to fill the seat vacated by Justice Lewis Powell. Like Kennedy now, Powell was the ultimate swing justice; his was the key fifth vote for liberals on issues including abortion rights and affirmative action, topics as charged then as they are today.
President Ronald Reagan’s original choice to take Powell’s place was conservative federal appeals court judge Robert Bork. The ferocious confirmation fight that ensued — and resulted in Bork’s rejection — still echoes in today’s unceasing warfare over judicial nominations. Kennedy’s unanimous confirmation — he was Reagan’s third choice, after Douglas Ginsburg’s nomination fizzled over disclosures that he smoked marijuana with law students — calmed only the immediate furor.
Imagine, then, a Kennedy retirement in this partisan and unstable political landscape. It could make the Bork fight look like a kindergarten squabble. With President Trump under investigation by the special counsel and his approval rating mired below 40 percent, his incentive may be to cater to his base with a pick as far to the right as possible, an instinct enabled by the Republicans’ move, during the confirmation of Justice Neil M. Gorsuch, to eliminate the filibuster for Supreme Court nominees.
Justice Kennedy, perhaps it is unfair to pile all this onto your shoulders, but is it really wise to subject an already divided country to even more turbulence?
And to another nomination by this president, with his evident ignorance of the role of the judiciary and disdain for judicial independence?
Your career has been characterized by insistence on civility, respect for the dignity of all individuals and commitment to the rule of law — qualities absent in our president. Just read Trump’s tweets and ask yourself: Do I really want my successor named by this man?
No need to look back to the campaign, and his repugnant comments about the “Mexican” judge presiding over the Trump University fraud lawsuit. Just consider the president’s tweets about judicial rulings in the case that has now reached your own court. He blasted the “so-called judge”; assailed “slow and political” courts; and, most alarming, suggested that blood would be on the judiciary’s hands if a terrorist incident took place while his travel ban was being delayed.
The hearing didn’t get much attention, but consider, too, the Trump appellate court nominees who came before the Senate Judiciary Committee earlier this month. One, Kentucky lawyer John Bush, nominated to the 6th Circuit, posted pseudonymous writings on a political blog that touched on President Barack Obama’s Kenyan heritage, referred to then-House Speaker Nancy Pelosi (D-Calif.) as “Mama Pelosi” and suggested that someone should “gag the House speaker.” In another post, Bush described slavery and abortion as “the two greatest tragedies in our country” and said they “relied on similar reasoning and activist justices at the U.S. Supreme Court, first in the Dred Scott decision, and later in Roe.” Query whether you, Justice Kennedy, would count as one of those activist judges, having joined the controlling opinion that kept Roe v. Wade from being overturned in 1992?
Another nominee, Damien Schiff, nominated to the Court of Federal Claims, used a different blog to denounce anti-bullying efforts for “teaching ‘gayness’ in public schools,” and to criticize the court’s ruling in Lawrence v. Texas — that’s your ruling, Justice Kennedy — striking down state laws criminalizing homosexual sodomy.
Oh, and also, to observe that “it would seem that Justice Kennedy is (and please excuse the language) a judicial prostitute, ‘selling’ his vote as it were to four other justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy.”
Justice Kennedy, does the president who chose this man really deserve to name your replacement?
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