by Nan Aron, opinion contributor · June 27, 2018
While the news of Justice Anthony Kennedy’s retirement is not entirely unexpected, it still comes as a thunderclap. This is even more true now than it would have been last June, when speculation also swirled around his possible departure.
Since then, we have had another year to observe the Trump administration’s downward spiral into cruelty and incoherence, an approach to governing that has not spared the judicial branch. Trump has continued to target courts and judges with the crudest of insults, even as his White House works overtime to push forward lower-court judicial nominees who are among the most ideologically extreme and professionally underqualified we have seen in nearly 40 years in this field.
We’ve also had the chance to witness a season of Supreme Court decisions that reflect the impact of Trump’s first appointee to the high court, Justice Neil Gorsuch. Anyone who saw the photo of Mitch McConnell shaking hands with Gorsuch — posted just moments after the court upheld the Trump travel ban — has no doubt that Gorsuch is delivering on the Trump agenda. Case after case shows the grim effects, from the Muslim ban, to the protection of fake health centers’ practice of misleading pregnant women, to upholding Ohio’s purge of its voter rolls and a bakery’s decision not to serve a same-sex couple.
So the stakes for this next Supreme Court nomination are enormous. And none of the people on Trump’s “short list” of some two dozen potential nominees, a list that Trump has already acknowledged as a product of the Federalist Society and Heritage Foundation, gives us confidence, No one on the list seems likely to be free of the intense political bias toward the ruling class that judicial nominees of this administration possess in spades.
Among those widely considered to be leading candidates is Brett Kavanaugh of the D.C. Circuit. Kavanaugh believes that the president doesn’t have to follow the law if he “deems the law unconstitutional”; that “criminal investigations and prosecutions of the President” should be deferred while he is in office; and that “the President must be able to appoint and remove at will the independent counsel.”
Similarly, Joan Larsen, a Sixth Circuit judge widely considered to be near the top of the list, has written that in some cases the president can ignore acts of Congress. Amy Coney Barrett, of the Seventh Circuit, and Kavanaugh have both taken aim at the Affordable Care Act and most likely still have it in their sights. Raymond Kethledge, of the Sixth Circuit, is hostile to workers’ rights and privacy rights: notably, he once argued that the government has a right to collect, without a warrant, records that reveal details of consumers’ cell phone calls — a position the current Supreme Court just rejected.
It should worry us that these judges are at the head of the line for appointment to a court where the future of health care and environmental protection, along with the rights of women, people of color, LGBTQ people, workers and consumers are literally on the line.
The court could well decide the outcome of the recent family separation crisis at the border, too, and existential questions about the Trump presidency itself if that is where Robert Mueller’s investigation leads.
As has been written many times, Kennedy played a historic role on the bench as the deciding vote in many important cases that were seminal moments for civil and human rights. No fewer than four key cases for LGBTQ rights depended on him, including his vote and majority opinion in Obergefell v. Hodges, affirming same-sex couples’ right to marry. At times he also ruled in ways that disappointed. But like Kennedy, the person who succeeds him should be someone who makes rulings on a case by case basis, not by following a rigid political agenda.
The White House should honor Kennedy’s legacy by discarding the Supreme Court short list generated by partisan special interests, and moving toward bipartisan consultation. But if that doesn’t happen — and experience suggests it won’t — advocates will not meekly retreat; the stakes are too high, and the administration has outraged too many.
Rather, this Supreme Court nomination will engender the most epic battle over such a nomination that this country has ever seen. Count on it.
Nan Aron is the president of Alliance for Justice, a left-leaning federal judiciary advocacy organization.
The Hill · by Nan Aron, opinion contributor · June 27, 2018