Momentous Days Ahead--One Way Or the Other
The retirement of Justice Kennedy (81) from the US Supreme Court opens up a door for Trump and the US Senate. If a suitably conservative justice is nominated by the President and supported by the Senate it is possible that the Court will be weighted towards traditional, text orientated interpretation of the law in the United States for a long time to come.
We need to remember that the US Supreme Court was deliberately designed to be the third nexus of the federal government (the others being the legislature (Congress and the Senate) and the President and his Federal agencies. It was always a key check and balance upon the other two branches, keeping them "honest" as it were.
Justice Kennedy has been a festering sore on the Court. The reason is that he was an intellectual and judicial gadfly. Here is National Review's assessment of his tenure:
While it is true that Justice Anthony Kennedy was a disappointment to conservatives, the observation misses the point. Kennedy did not owe conservatives decisions that they liked. What all Americans deserved from him was the conscientious application of the law. That they did not get it is the true indictment of his time on the Supreme Court.David French, who knows his stuff, argues that the consequences of Kennedy's retirement are more than just significant:
Again and again, Kennedy made rulings that aggrandized the power of the Court and of himself as its swing justice. No justice, right or left, was more willing to substitute his judgment for that of elected officials and voters. No justice was less willing to tie himself down to clear rules or a legal philosophy that would constrain him in future cases, let alone rules or a philosophy that bore a plausible relation to the Constitution. We moved toward a system of government no Founder intended, in which his whim determined policy on a vast range of issues.
Some of Kennedy’s critics said that Kennedy had set himself up as our “philosopher king,” but the term suggests a level of sophistication in thought that he did not evidence. The trademark of a Kennedy opinion was a verbal effusion that gestured toward profundity without overcoming confusion. Most notoriously, he used an abortion case to opine that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Nobody who ratified the Constitution or its relevant amendments thought in such terms. Nor would any of it be a legal defense against a parking ticket.
Kennedy’s lack of real guiding principles had the happy consequence that he sometimes voted for the right legal outcome — and even sometimes concurred in opinions that reached the right outcome for the right reasons. But we hope that his successor will have a much stronger sense of what fidelity to the law requires. And any plausible Trump nominee will be an improvement.
In fact, the consequences of Kennedy’s retirement — both legal and political — are immense. First, let’s look at the legal angle. While Kennedy’s judicial liberalism was often exaggerated (for example, he wrote or joined a number of solid opinions that protected and reaffirmed core constitutional liberties, including liberties protected by the First and Second Amendments), it’s a simple fact that as a “moderate” swing justice he served as the primary judicial guardian of abortion rights and was more responsible than any other justice for the relentless legal march of the sexual revolution. This tweet, from Slate‘s Mark Joseph Stern, sums up the feeling on the left half of Twitter right now:
Justice Kennedy's retirement is a catastrophe for liberals. Abortion access, same-sex marriage, voting rights, environmental regulations—they're all on the line now. This is nothing short of a crisis for the left. slate.com/news-and-polit…
The first hurdle is for Trump to stick to his pledge, and choose a replacement for Justice Kennedy from the membership list of judicial merit drawn up by the Federalist, and other conservative groups. If the President remains resolute on this pledge and commitment, it will be an excellent first step.
Senate Minority Leader, Dick Durbin has already reminded the media and his constituency of the limits of resistance against the Trump nominee's eventual appointment, regardless of who ends up nominated by the President.
Co-host Mika Brzezinski asked, “[W]hat is the gameplan? And you are saying you don’t think you should play hardball the way the Republicans did?”
Durbin answered, “Well, we don’t have the power. I mean, if we had the power and the authority to make those decisions, it’s one thing. But under the rules — under the rules with Justice Gorsuch, in a matter of three months or so, he went from being nominated by the White House to being approved by the United States Senate. In the meantime, there was vetting, investigation, hearing, questions, votes in the committee, consideration on the floor. But it was on a path where the majority controlled the outcome, and at this point, we don’t have the majority.”
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