Bill Owens: Has Justice Kennedy Been Trumped?

Jul 6, 2018

Justice Kennedy has carefully constructed an image of an independent member of the court and the “swing” vote.  He has sided with liberal justices and conservative justices to create majorities over his thirty years on the Court. 

A few quotes from significant decisions may well be instructive.

In Citizen’s United, Justice Kennedy held that “the appearance of influence or access will not cause the electorate to lose faith in our democracy.”

In Roma v. Evens, Justice Kennedy’s opinion invalidated Colorado’s effort to exclude gays and lesbians from protection of anti-discrimination laws, and he stated “it is not within our constitutional tradition to enact laws of this sort, central both to the idea of the rule of law and to our own constitution’s guarantee of equal protection, is the principal that government and each of its parts remains open on impartial terms to all who seek its assistance.”   

In Planned Parenthood v. Casey, in which he was joined by Justices O’Connor and ­­­­Souter in refusing to overrule Roe v. Wade he stated “any justification beyond a present doctrinal disposition to come out differently from the court of 1973” is not a basis upon which to overrule Roe v. Wade.

These quotes reflect a person with a pragmatic belief system grounded upon the facts of each case.  Sounds like a moderate to me.  If I were a senator, these quotes would form a base line for questions to any nominee.  The answers will be instructive. 

Recent news reports which have not been denied by Justice Kennedy indicate that for over a year the White House has lobbied him to retire for the sole purpose of allowing Mr. Trump to appoint a successor.  It appears that the appointment of Justice Gorsuch apparently went a long way to convincing Justice Kennedy to retire, with the White House arguing that Justice Gorsuch was a quality jurist.  The issue is not that Justice Gorsuch, is, or is not a quality jurist, but rather that Justice Gorsuch has made it well-known that he will only move to the right, and has no interest in the middle.  It is equally troubling that the Trump administration admits to lobbying Justice Kennedy to retire, and even more troubling, that Justice Kennedy was susceptible to such lobbying.  So much for draining the swamp.

There can be no doubt that Justice Kennedy knows Justice Gorsuch’s doctrinal bent and about his desired outcomes, and although he may like him on a personal basis and may have found him an excellent law clerk, the idea that Justice Kennedy could be swayed into believing that Mr. Trump would appoint a clone of Justice Kennedy, seems completely incomprehensible.  Justice Kennedy can read papers as we all can, and see the list of not just conservative justices that Mr. Trump wants to appoint, but rather those sharing the Antonin Scalia philosophy which leans to the extreme right. 

The old phrase that elections have consequences is certainly true, and many would argue that a movement back towards the center is necessary, however that is not where we are going.  This will be an all hands on deck push to eliminate many policies, without even speaking about choice, including gay and lesbian rights, the NLRB, and something which should bother those of us who live in the Adirondacks, environmental protections.

It is incredibly disappointing, that someone who I always thought was an independent thinker, and would judge issues on a wide spectrum of philosophic and constitutional interpretation, has succumbed to Mr. Trump. Justice Kennedy may well be deeply distressed when his decisions are overturned, on purely doctrinal grounds. 

There are few actions that a president can take, as Mr. Trump has loudly proclaimed, that can have more lasting impact than the appointment of Supreme Court Justices.  Mr. McConnell has decided to proceed in the fall, even though he howled loudly about Justice Garland, and refused him even a hearing, much less a vote.  Could there be good news in this strategy? Is Mr. McConnell maybe looking at polls that tell him that the Senate majority could be in jeopardy? Even if it is, the damage will likely be done in terms of the Supreme Court.

Mr. Owens is a former member of Congress representing the New York 21st, a partner in Stafford Owens in Plattsburgh, NY and a Senior Advisor to Dentons to Washington, DC.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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