Give this to Justice Anthony Kennedy— He went out on a good note.
Actually, several good notes. After years as the “swing vote,” his final opinions were for solid constitutional results on matters ranging from religious liberty for bakers and florists to free speech for California pregnancy centers to acknowledgment of an obvious executive power to limit immigration.
It is worth noting that the “swing vote” designation means he honored the Constitution’s text sometimes, and sometimes he did not. If Justice Neil Gorsuch is any indicator, President Trump meant what he said when he promised Supreme Court nominees who would follow the originalist traditions of Antonin Scalia and Clarence Thomas. Another Trump nominee could solidify a majority that can be relied upon to decide cases through a lens of constitutional fidelity. This would end years of nail-biting tension over which side of the bed Kennedy would wake up on.
Any conservative appreciation of Kennedy’s recent product should be tempered by the memories of his liberal votes on issues ranging from abortion to the death penalty to affirmative action. And while we thank him for overall clarity on the rule of law in this term, no one should forget his wholesale abandonment of it in Obergefell v. Hodges, the infamous 2015 ruling that forced gay marriage equality on every state.
In that ruling, Kennedy joined four liberal colleagues in basing an opinion not on what the Constitution says, but on his empathy for gays who sought to prevail. When a “swing vote” justice swings loose from a constitutional mooring, the result is judicial tyranny.
Yet, as Trump weighs successors, we will hear claims that Kennedy should be replaced by someone similarly unreliable, as if the court needs “balance.”
The current court indeed has rough equilibrium, but it is not a legislative body tasked with reflecting the will of a mixed electorate. It is a judicial institution with the sacred responsibility of evaluating laws on the basis of constitutional merit.
There will be much wrangling over the “conservatism” of any nominee, but it is not political conservatism we seek. I do not care whom the nominee has voted for, or crave his or her feelings on the hot topics of the day.We do not seek the erasure of Roe v. Wade because we are pro-life; we seek it because it was an unconstitutional ruling. We do not seek the undoing of Obergefell because we favor heterosexual marriage; we seek it because it is wholly improper to invent rights that do not exist.
As such, no one should seek “balance” or tout the desirability of “swing votes” in filling court vacancies. The quest should be for justices who pledge to rule based on a sincere assessment of constitutional constancy. This would not necessarily yield unanimous rulings, but perhaps we would be relieved of the chagrin of seeing our highest court guiding its course based on political or social whims.
Now to the timing. In 2016, Senate Majority Leader Mitch McConnell held up the Obama nomination of Merrick Garland because a presidential election loomed on the near horizon. In their sheer panic at the prospect of losing an activist grip on the court, Democrats have now manufactured a myth of equivalency, as if the 2018 elections pose a similar prospect.
They do not. Antonin Scalia’s February 2016 death opened the door for a nomination close to the selection of the actual President who would make the choice, not the Senators who would rule on it. Trump is President.Congress is in place. The seat can be filled by November (Elena Kagan’s 2010 journey from nomination to confirmation was less than three months).
Nonetheless, here is Chuck Schumer: “Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year.”
And Dianne Feinstein: “We are now four months away from an election to determine the party that will control the Senate. There should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in.”
In a season sure to be inflamed by partisanship both real and perceived, a consistency check is in order. If a vacancy were to arise mere months before the Trump re-election bid of 2020, Democrats would be on solid ground to push for the delay in a replacement until voters choose the president who would make the choice.
Conversely, if a vacancy occurred during a Democrat presidency more than four months before midterms, that President would be completely justified in moving forward with a nomination with the Congress in place if desired.
If we are consumed with the calendar, surely Justice Kennedy himself is aware of it. As Democrats cling to his robe with suddenly heightened adulation, it is worth noting that he chose an exit that leaves time for a Trump pick to travel through a Republican Senate. If that were such a daunting prospect, he could have waited for those November results himself, before taking his bow.
Various types of pressure are instantly on display. With John McCain unavailable to vote, the Trump nominee will need all 50 remaining Republicans to line up. If that nominee is viewed as a threat to Roe v. Wade, might we see opposition from pro-choice GOP Senators Lisa Murkowski of Alaska, Susan Collins of Maine, and perhaps even the vaguely-aligned Shelly Moore Capito of West Virginia?
Among Democrats, what is the strategy for incumbents fighting for surivival in states won decisively by Trump? West Virginia’s Joe Manchin, North Dakota’s Heidi Heitkamp and Indiana’s Joe Donnelly are not only trying to attract Trump voters to prevail in November, they are doing so with their votes for Gorsuch on the record. By what logic could they say no to a similar nominee? And wouldn’t it be the height of irony if pro-choice Republicans jeopardize the Trump pick, only to have it rescued by calculating Democrats?
Millions of words will be spoken about the nomination battle to come. The summer months will now ignite with charges that Trump somehow owes the Court someone to balance Gorsuch, someone to emulate Kennedy.
Did Barack Obama lighten up on the liberal pedal after giving us Sonia Sotomayor in 2009? If anything, he doubled down with his pick of Elena Kagan the following year.
Both nominations sailed to success. Democrats bracing for the rigors of further rulings that honor the Constitution would do well to remember one of America’s most concise and inarguable lessons: Elections have consequences.