Justice Anthony Kennedy was the buffer for the Supreme Court’s ideological camps, absorbing the stress generated by the nation’s ragged cultural divide and reliably delivering a decisive swing vote. His vote was often one of brokered moderation.
Kennedy’s retirement, which he announced at the close of the court’s term on Wednesday, was not surprising, but the consequences of his departure are deeply concerning. He would have best served the nation by waiting until after the 2018 midterm elections and the conclusion of the investigation by special counsel Robert Mueller.
Kennedy’s resignation comes at a time of dwindling confidence in government and respect for its leaders, and a coarsening national conversation. There is anxiety about the identity of the nation and its basic values. The nation’s president is unpredictable, with a preference for upheaval. Congress, especially the Senate, which must confirm the next nominee, is crippled by a partisanship untethered to any ideology except winning.
Kennedy’s successor will wield enormous power to mold the direction of the court. The issues are reliably contentious: access to abortion, gun use, the role of religion in public spaces, voting rights, money in elections, remedies for sex and race discrimination, the death penalty, limits on free speech and the press, access to the courts to litigate grievances. And most important, whether the nation’s highest court continues to serve as a check on abuses of power by the other branches of government.
To treat this appointment as just another partisan prize in this atmosphere of hyperpolitical division would be destructive.
President Donald Trump rightly noted that his power to appoint a justice is “one of the most important things for our country.” He said he will quickly choose from a list primarily put together by very conservative legal organizations. But selecting from an interest group’s menu inspires little confidence that the president can find a justice with the personality and outlook that would continue Kennedy’s cautious moderation.
Trump should expand his list. His nominee should be someone who makes preserving the institution a priority, one who respects precedent. A nominee who advocates broad upheavals of past rulings and radical interpretations of the Constitution will only deepen the national divide.
Senate Majority Leader Mitch McConnell said the confirmation hearings will take place before November’s midterm elections. McConnell already denigrated the confirmation process with his deeply dishonest tactic of refusing to hold a hearing on the well-qualified and deeply experienced Merrick Garland, who was nominated by President Barack Obama, until after the 2016 election. McConnell sadly will not heed calls to wait until after the 2018 elections.
Kennedy was nominated by President Ronald Reagan in 1987 after the failures of two previous candidates, including Robert Bork, one of the most radical and controversial jurists in modern history. Three decades ago, Kennedy, a moderate conservative, was seen as a balm to restore confidence in the judicial process. That’s exactly what we need now.