Thursday, June 28, 2018

Justice Anthony Kennedy Retires: Will The Swing Vote Be Replaced By A Dependable Conservative?

Yesterday the news exploded that Justice Anthony Kennedy, the "swing vote" on the Supreme Court, is retiring at the end of next month. Those poor illegal alien kids "ripped from their mother's arms" are completely forgotten. Kids separated from their parents makes great political theater but when liberals sense their holiest of sacraments, abortion, being threatened, nothing else matters. The meltdown was immediate and predictable. This is going to be the ugliest nomination process we have had for a very long time.

You really cannot overstate how important Kennedy was, even if you disagreed with many of his decisions. With four conservative and four liberal justices, it was often Kennedy alone who made decisions. Whichever way he swung determined the outcome. For example, in Obergefell v. Hodges which magically created a "right" to homosexual marriage, Kennedy was the deciding vote as he was on most every 5-4 decision of the court. On a lot of cases the other 8 Justices could have stayed home and let Kennedy hear arguments and make the decision of the court. Without Kennedy and with a conservative replacement, the awful Roe v Wade decision could be in jeopardy and even Obergefell.

Also of note because I have a long memory and hold a grudge, it is worth noting how Kennedy got on the court in the first place. Kennedy was the replacement (after another replacement withdrew) for the failed nomination of Robert Bork. By any measure Bork was a legal titan. But his nomination was derailed by disgusting attacks by Senator Ted Kennedy among others that claimed things like having Robert Bork on the court would lead to blacks being forced to eat at segregated lunch counters. It is bad enough that a moral degenerate like Ted Kennedy would sit in judgment of anyone else but his charges were patently false. Unfortunately it worked and Bork's nomination was defeated and Kennedy took the seat where he would become the most influential member of the Court for three decades. The slandering of Robert Bork changed the tone of judicial nominations, for the worse, and others like Clarence Thomas would be subjected to "borking". To me, conservatives are owed three decades.

The public list of Trump's favored nominees contains some really solid choices and some with some red flags. Hopefully Trump will nominate a fairly young, solid on originalism candidate who is also strong enough to face the personal onslaught that will greet any nominee. I hate to even say it but anyone who is nominated in this political climate also has to consider their own personal safety and that of their family.

Donald Trump has the potential to shape the court like no other President in my lifetime. He already got Gorsuch and has another spot to fill with a solid conservative jurist. Ruth Bade Ginsburg is 85 and in poor health, her seat could literally come open at any moment and if Trump wins re-election in 2020 I can't imagine she would try to hold old for 2024 in the hope of being replace by a Democrat. Likewise Justice Breyer is turning 80 and probably looking for the exit, one way or another. Clarence Thomas is "only" 70 but might take the chance to retire now if he feels sure he would be replaced by a similar justice. There can hardly be a more powerful legacy for a President than to fill five seats, a majority. Then again Trump might blink and do something dumb here but I am hopeful that he will appoint the type of judges that he said he would.

Whoever the nominee is and I expect them to be named before too long, you had better buckle up because it is going to be a crazy ride this summer and fall!

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