What’s at Stake With Justice Kennedy’s Retirement

As I’m sure you’ve heard by now, yesterday Justice Anthony Kennedy announced his retirement. He has been the quintessential swing voter on the Supreme Court for years now, helping to form a majority in over 90 percent of cases. It’s obvious that Donald Trump will nominate an extremist to replace Kennedy, so it’s worth looking at a few of the major issues that will immediately be at risk when hardcore conservatives hold a five member majority on the court. All of the following cases were decided 5-4, with Kennedy joining the liberals in the ruling.

  1. Reproductive freedom – protecting a woman’s right to chose in Whole Woman’s Health v Hellerstedt.
  2. Affirmative action – upheld the use of affirmative action in college admissions in Fisher v University of Texas.
  3. Marriage equality – guaranteed a fundamental right for same sex couples to marry in Obergefell v Hodges.
  4. Disparate impact – affirmed that claims of racial discrimination shouldn’t be limited by questions of intent in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.
  5. Criminal justice – outlawed the use of the death penalty for juveniles in Roper v. Simmons.

Those are just the five most well-known examples. As you can see, the stakes for this opening on the Supreme Court couldn’t be any higher: women could lose their right to chose, people of color and women could lose their right to level the playing field in education and employment, gays and lesbians could lose their right to marry, claims of racial discrimination could require intent, making the enforcement of civil rights unachievable and juveniles could be subjected to the death penalty.

Of course, Mitch McConnell is absolutely salivating at a chance to do all of that.

We will vote to confirm Justice Kennedy’s successor this fall. As in the case of Justice Gorsuch, senators will have the opportunity to meet with President Trump’s nominee, examine his or her qualifications, and debate the nomination. It’s imperative that the President’s nominee be considered fairly and not subjected to personal attacks.

Given his treatment of Judge Merrick Garland, if that sounds a bit hypocritical to you, you’re not the only one.

“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,” [Minority Leader Chuck Schumer] said. “Sen. McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the President’s right to nominate. Millions of people are just months away from determining the senators who should vote to confirm or reject the President’s nominee, and their voices deserve to be heard now as Leader McConnell thought they should deserve to be heard then.”

Anything but that would be the absolute height of hypocrisy,” he added.

Here’s the problem with that. Mitch McConnell doesn’t give a shit if you think he’s hypocritical. Matt Yglesias nailed it.

McConnell’s great strength as a politician is that he doesn’t care. He doesn’t care that it’s hypocritical…

It works for McConnell because he’s not interested in being thought of as a high-minded guy or in being well-regarded by high-minded people. He wants to be thought of as an effective party politician…

There’s a perfect alignment between the reputation he wants, the reputation he has, and the reputation he deserves in a way that’s unequalled among American politicians and that allows him to conduct himself with an even greater degree of shamelessness than Donald Trump himself since unlike the all-id Trump, McConnell isn’t out of control he’s just willing to be utterly ruthless in pursuit of his political objectives.

It would be wrong to see this as a zero-cost strategy. Most people who get into electoral politics do it, on some level, because they want to be liked and admired, and McConnell does not.

Attempts to shame Mitch McConnell will not work. Liberals are already lining up to suggest that Senate Democrats need to fight back. But frankly, I don’t see a path forward on this one. Thanks to the rule change that allowed Gorsuch to be confirmed by a simply majority, Republicans have a vote to give with 51 members. Trump’s nominee could be confirmed with 50 plus Pence. There are probably procedural moves that might delay confirmation until after the midterms. But that doesn’t mean that Trump will do anything other than stick with his nominee or come up with another extremist. Even impeachment won’t change the equation because a President Pence or McCarthy (if he becomes Ryan’s successor) are not going to do anything different.

That doesn’t mean that Democrats should do anything other than attempt to throw out every road block they can come up with. But the reality is that there are dark days ahead. The eternal optimist in me wants to find some light. But I’m not sure that any exists when it comes to the Supreme Court right now.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.