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Kennedy’s retirement is a serious, alarming development toward a more partisan court

Kennedy has been a conservative, but not a rigid ideologue. He sometimes has used his leverage to prevent the most extreme outcomes on matters that reached the Supreme Court.

Supreme Court Associate Justice Anthony Kennedy is a conservative, but not a rigid ideologue, who sometimes has used his leverage to prevent the most extreme outcomes on matters that reached the Supreme Court.
REUTERS/Carlos Barria

For progressives, and even for those who just like the idea of checks and balances, the announcement today of the retirement of Justice Anthony Kennedy may be the worst thing that has happened all year. We’ll see.

Perhaps Senate Democrats can find a way to buy time, to delay the confirmation of Kennedy’s replacement until after the midterms, and the result of those elections will increase the chance that some partisan/ideological balance can be restored to our system.

I’m sure we’ll hear more about their ideas along those lines, but much of what we’ve seen over the past two years, starting with the Republican success at blocking the Supreme Court nomination of Judge Merrick Garland, followed by the rapid and highly partisan confirmation of Justice Neil Gorsuch, leads me to see the Kennedy retirement and his likely replacement by a young and more reliably conservative justice — who will be quickly confirmed on a party-line vote — as a serious and alarming possibility.

To state the obvious, Kennedy – who is a conservative, but not a rigid ideologue, who sometimes has used his leverage to prevent the most extreme outcomes on matters that reached the Supreme Court – will likely be replaced with a young ideologue who will cast the decisive fifth vote on many matters of great import and who can be trusted – as Kennedy could not – to follow the party line.

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An element of the conservative movement has been working for years toward this day. The urgency of that element to replace Kennedy before the midterms will be powerful. I may be wrong, but I suspect the tools available to liberals and Democrats to even slow things down will not be enough.

In an effort to calm myself down, I reached out to Judge Kevin Burke of the Hennepin County District Court, on whom I have often relied for wisdom on matters judicial. I hoped he would reassure me that I was overreacting so I told him this development seemed “humongous” and “alarming” to me.

Unfortunately, he said he agrees. Burke has noted for years that the public’s view of the judiciary, including the Supreme Court, as measured by polls, has become increasingly partisanized, and that the replacement of Kennedy with a younger and more reliably conservative new justice will reinforce the growing public perception of the court as a “partisan tool.”  (Gallup has found over recent years that the portion of Americans who see the Supreme Court as above partisanship has fallen considerably.)

Not only is Trump likely to name someone who will push those partisan perceptions in the public perception, but at every step of the confirmation process, the partisan nature of court appointments will be reinforced in the public mind, predicted Burke, who has been a judge for more than 30 years and served several terms as the chief judge of Hennepin County.

Burke has worked and written on the topic of procedural fairness, which I take to mean that courts must not only be fair but must be perceived to be so, and that the idea of fairness is linked to the perception of nonpartisanship.

What happened in 2016, after the death of Justice Antonin Scalia, when Senate Republicans flatly and explicitly refused to even consider President Obama’s nomination of Garland because they hoped that by 2017 a Republican president might be in office, sent the message that judicial appointments, and therefore judicial decisions, were deeply tainted by partisanship.

“What I fear is the process that is about to unfold, coming on the heels of the McConnell treatment of Judge Garland, will do irreversible damage to the American judiciary,” Burke told me.

Despite being a conservative, and a Reagan appointee, Justice Kennedy was a key vote in preventing the Roe v. Wade decision on abortion from being overturned.  

Burke also said that “Kennedy wasn’t bigoted against gay people,” and his vote was important in preserving various gay rights rulings.

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With Kennedy gone and likely replaced with a more partisan justice whose confirmation would be rammed through on party-line votes, Burke wondered how that might influence the court if questions reach the justices on the matter of the ongoing investigations of President Trump.

If Trump asserts, for example, a right not to testify before a grand jury about whether he colluded with Russians in the 2016 election, that matter could reach the Supreme Court. If that court consisted of a majority of Republicans, who have come to the bench through an increasingly partisanized process, Burke said, “I don’t think President Trump has any reason to fear whether he would get the five votes he needs” to support some assertion of executive privilege that protects him from having to appear before a grand jury under oath.

Personally, I just finished reading the smart, sobering book: “How Democracies Die.” I’m quite worried about ours.