What happened to the silly season, the boring summer months where no major news stories ever broke? On top of everything else that’s happening, progressives now have to decide What To Do About The Kennedy Vacancy.
We can predict what President Trump and Senate Majority leader Mitch McConnell will do, because they seek to displace the rule of law at the Supreme Court with a rule of ideology - and, perhaps, a rule of personal loyalty to Trump. Trump and McConnell, therefore, will find the youngest, healthiest, most rightward/Trumpward-leaning judge, professor, or practitioner with the smallest decisional footprint and roll him or her through nomination and confirmation as quickly as possible.
And, we can also predict what the larger Republican community will do while the search for a successor to Justice Kennedy plays out over the next few months. Republicans in and out of government will lobby for a Supreme Court nominee who will BFF their jurisprudential unicorns: “strict construction” and “originalism.”
The good news about Kennedy’s retirement - using “good” in the sense of “not as bad as it could be” - is that his departure won’t mean that a conservative Justice will replace a liberal Justice, or will even replace a consistently moderate Justice. As noted here, “there have been 13 5-4 decisions so far this term that have pitted the conservative justices against the liberals. Kennedy went with the conservatives all 13 times.”
And, in Janus V. AFSCME Council 31, the anti-union decision on public-employee union dues the Court announced this past week, Kennedy voted again with the conservative bloc. Thus, we have fourteen 5-4 conservative-liberal schisms this term, with Kennedy on the conservative side in every case.
For a corroborative review of Justice Kennedy's largely conservative record, see this at fivethirtyeight.com, which concludes,
Since he joined the court in 1988, Kennedy voted in a conservative direction about 57 percent of the time — a record that’s nearly identical to that of Chief Justice John Roberts and only slightly less conservative than Justices Samuel Alito, Antonin Scalia and Clarence Thomas. And in close decisions, Kennedy sided with the conservatives 71 percent of the time.
In anticipation of the Republican campaign to add another Alito, Thomas, or Gorsuch to the Court (or another Kennedy?), here’s a proposed strategy: declare that candidates and nominees will be measured against a two-part test grounded in the rule of law. A potential or actual nominee is per se unacceptable if he or she is unable, unready, or unwilling to say under oath that
- the settled law of the land includes Brown v. Board of Education and Roe v. Wade, and
- the President may be prosecuted for criminal acts or omissions while in office.
Why these two components?
First, Brown and Roe have survived decades of litigation and been re-affirmed - by and large - by changing majorities of Justices. The rule of law weakens if it doesn’t encompass 64-year-old and 45-year-old civil-rights benchmarks that have proved durable in this hyper-partisan era.
Of course, there are other cases that could be used in this test. For examples, there are Gideon v. Wainwright (recognizing a person’s constitutional right to an attorney when charged with a crime in state court); Miranda v. Arizona (recognizing the right of an arrestee to be advised of her constitutional rights when arrested); and Obergefell v. Hodges (holding that a State must license a marriage between two people of the same sex and recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State).
Like Brown and Roe, each of these decisions represents a constitutionally premised incremental step toward equality in treatment under the law. Supreme Court candidates, and the eventual nominee, should be required to account explicitly for their views on all of these cases, in part to illuminate their stance on the doctrine of "stare decisis," a basic principle of judicial decision-making. Stare decisis recognizes the role of precedent in judicial consideration of current cases and, where feasible, the institutional value of harmonizing past decisions with cases now under consideration.
Brown, unfortunately, seems especially deserving of inclusion right now. A few months ago, it might have been assumed it wasn’t necessary to include Brown in a test; however, a recent panel of Trump federal court nominees proved the folly in that assumption by refusing to say whether Brown was correctly decided.
Roe seems equally imperiled. It’s a perpetual and central target of the theocratic wing of the Republican party, despite having the support of approximately 67% of the public, per a new Kaiser Family Foundation poll.
As to the second part of the test, any nominee who believes any federal, state, or local public official is immune from prosecution for his or her criminal acts in office doesn't endorse the supremacy of the law over the office-holder.
And the rule of law suffers further if a candidate or nominee refuses to take a position on the plain language of this Impeachment Clause of the Constitution:
Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law. {Emphasis added.]
In light of recent conversations between Trump and federal office-holders (James Comey and Rod Rosenstein, for examples), it’s arguably necessary to insist also that a candidate/nominee unambiguously state that he or she has not pledged personal loyalty to the President. Maybe that’s subsumed under the second half of the test. Then again, maybe it’s essential to demand a no-loyalty-pledge separately and explicitly.
And, the unfolding story about the business relationship between Trump and Justice Kennedy’s son, who “worked closely with Mr. Trump when he was a real estate developer,” reminds us that more financial disclosures than are customary might be necessary for any candidate or nominee with any connection to Trump or any of his enablers.
One more suggestion: it seems pointless to argue about the Biden-Rule-That-Wasn’t-A-Rule, or McConnell's changing of the Senate rules for ending debate on Supreme Court nominees. An argument grounded in Senate rules probably will be irrelevant to the public.
Beyond that, perhaps the best thing we can do is donate to entities that poll Maine and Alaska voters to see which of these issues, if any, will move Senators Collins and Murkowski to oppose whichever right-wing judicial activist President Trump and Senator McConnell put before the Senate.
And then? We can hope the Maine and Alaska polls produce tactically valuable survey results that we use wisely - in the campaign to replace Justice Kennedy, in the midterm elections, and in 2020.
