Federal Courts and Nominations

OP-ED: Justice Kennedy, don’t abandon your legacy

Are rumors of US Supreme Court Justice Anthony Kennedy’s looming retirement greatly exaggerated? None of us outside the Court can know for sure, but there are important, interlocking reasons that counsel against Kennedy leaving the Court at this momentous point in our nation’s history.

First among them is the utterly broken process of Supreme Court nominations under President Donald Trump and Senate Republican Leader Mitch McConnell, which leaves little doubt that any nominee to replace Justice Kennedy would be intent on demolishing the key pillars of his legacy.

As longtime Court-watcher Linda Greenhouse recently observed, thanks to Trump and McConnell, the Court has been turned into an electoral prize. For those who hold fast to the ideal of the Court as an independent institution above the political fray — including Kennedy, the Court’s longest-serving Republican appointee, as well as Chief Justice John Roberts — that is the last place they want it to be.

We saw the Supreme Court nomination process reach the nadir of politics beginning in February 2016. Less than two hours after Justice Antonin Scalia’s death, McConnell cravenly decided to hold his vacancy open for more than a year, refusing even to give US Appeals Court Judge Merrick Garland — President Obama’s eventual nominee to the Court — a hearing, much less a vote on the Senate floor. Though Garland had bipartisan support, McConnell likely did this in the hopes of taking the nomination from Obama and giving it to a Republican president the next year.

Meanwhile, throughout the 2016 campaign, candidate Trump devised a series of litmus tests for whomever he was to nominate to the Court, which he promised would come from a list of names produced by the Heritage Foundation and Federalist Society, two conservative organizations. Trump plucked his first Supreme Court nominee, Neil Gorsuch, from that list. Today, Trump is expected to announce nominations to several lower-profile but immensely important judgeships on the federal courts of appeals, which will also likely include names from that list.

This is important because lower court nominees today can become Supreme Court nominees tomorrow, which means Trump’s litmus tests for his judges threaten key components of the priceless, though fragile body of law that Justice Kennedy has carefully built over the past three decades.

For example, Trump promised to nominate to the Supreme Court justices who would “automatically” overturn Roe v. Wade. Kennedy, however, is the last of three Justices still serving on the Court who wrote the controlling opinion in Planned Parenthood v. Casey, the landmark case that upheld Roe and the right of women to choose abortion. And it was Kennedy’s vote last term in Whole Woman’s Health v. Hellerstedt that struck down onerous laws passed by some states to shut down abortion clinics, over the objection of four other Republican-appointed Justices.

Even more central to Justice Kennedy’s legacy is his vindication — at historic and pivotal moments — of the principle of equality for gays and lesbians. In the 1990s, it was the force of Justice Kennedy’s determined commitment to personal liberty and dignity that reversed the Court’s previous rulings permitting anti-gay discrimination by states. And it was Justice Kennedy who meticulously constructed a framework of equality in the years that followed, culminating in the Court’s recognition just two years ago that gays and lesbians have the right to marry under the Constitution’s Equal Protection Clause.

These and other achievements — including opposition to racial discrimination in higher education, public housing and jury deliberations — rest on the margin of his single vote.

In the Trump era — with a Senate confirmation process now subject to a simple majority vote, thanks to McConnell and Senate Republicans — it is impossible to imagine any stronger or more able steward of Justice Kennedy’s legacy than Kennedy himself. Despite all the pressure and pointed rumors of his retirement, he surely realizes this.

In the event that Judge Garland’s confirmation had been confirmed, Kennedy would have likely ceased to be the fulcrum of a 5-4 conservative majority on the Court. Now, instead, with Justice Gorsuch having taken his seat on the bench, Kennedy is once again at the center of American law. With Gorsuch’s staunch conservativism seemingly confirmed during his Senate hearings, Justice Kennedy’s swing vote appears to be critical on the high court.

At this writing, several controversial issues are making their way before the Court, from voting rights to gun regulation. This month, in fact, two separate federal courts of appeal will hear challenges to President Trump’s revised Muslim travel ban — challenges that almost certainly will arrive before the Justices. In the years ahead, Kennedy’s influence over the nation’s future will be more compelling than ever.

In short, the Supreme Court is once again the Kennedy Court. And as the only one who can ensure his legacy, Justice Kennedy might be more immune to retirement pressure than Trump and his supporters have bargained for.

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