How Trump's Supreme Court Pick Could Undo Kennedy's Legacy

By Jeffrey Toobin, The New Yorker

03 July 18

Upon Justice Kennedy’s retirement, the President is unlikely to nominate a moderate. What rulings would a brazen conservative majority produce?

here is no mystery about Supreme Court Justice Anthony Kennedy’s favorite word. It is “dignity,” which he invoked repeatedly in his opinions. The word appears three times in his 2003 decision in Lawrence v. Texas, which established the principle that gay people could not be thrown in jail for having consensual sex. He mentions it nine times in his most famous opinion, Obergefell v. Hodges, from 2015, which guaranteed the right to same-sex marriage in all fifty states. Lawyers, hoping to appeal to the Court’s swing vote, sprinkled their briefs and arguments with “dignity,” even as critics on both the left and the right found Kennedy’s infatuation with the word (which does not appear in the Constitution) maddening, because it was never quite clear what he meant by it. Still, the word seemed fitting for the man—a tall, sombre Californian who appeared ever aware of the burdens imposed by his station.

 So there is some irony in Kennedy’s decision, last week, to turn over his precious seat on the Supreme Court to the least dignified man ever to serve as President. Though Donald Trump was a frequent litigant when he was in the private sector, he displayed no discernible views on the judiciary. But, once he became a Republican candidate for President, he fully embraced the contemporary conservative dogma regarding the courts. He recognized that evangelicals and their political allies would overlook his vulgar demeanor if he pledged to give them the judges they wanted—and he has, and he will.

 Kennedy is no liberal. He provided the fifth vote to deliver the Presidency to George W. Bush in Bush v. Gore; he was the author of the majority opinion in Citizens United v. Federal Election Commission, which hastened the deregulation of American politics; he upheld Trump’s travel ban this term; and his votes on the day-to-day grist of the Supreme Court’s docket—on labor law, the environment, and health care—hewed closely to those of his fellow Republican nominees. But, to the dismay of conservatives, he departed from their orthodoxy on some key issues in addition to gay rights, among them affirmative action, the death penalty, and, most notably, abortion rights. In the 1992 case of Planned Parenthood v. Casey, Kennedy voted to uphold Roe v. Wade, and he remained a reluctant but steady advocate for maintaining the precedent.

 The whole purpose of Trump’s Supreme Court selection process has been to eliminate the possibility of nominating someone who might commit Kennedy’s perfidies of moderation. The activists from the Federalist Society and the Heritage Foundation who supplied the President’s list of twenty-five prospective nominees are determined to tear down the monuments, on select issues, that Kennedy has built. Their labors have already produced one soaring success, in the confirmation, last year, of Neil Gorsuch. His extremism has exceeded that of his predecessor Antonin Scalia and equalled that of his colleague Clarence Thomas, the Justice with whom he has voted most often.

 Yet it’s far from certain that the public wants the kinds of rulings that a brazen conservative majority would produce. So the nominee and his or her supporters will avoid spelling out the implications of this judicial philosophy. As with Gorsuch, the nominee will be supported with meaningless buzz phrases: he or she will be opposed to “legislating from the bench” and in favor of “judicial restraint.” Like Gorsuch, the nominee will rely on airy generalities rather than on specific examples. It’s all the more important, then, to articulate in plain English what, if such a nominee is confirmed, a new majority will do.

 It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.

 And these are just the issues that draw the most attention. In many respects, the most important right-wing agenda item for the judiciary is the undermining of the regulatory state. In the rush of conservative rulings at the end of this term, one of the most important received relatively little notice. In Janus v. afscme, a 5–4 majority (including Kennedy) said that public employees who receive the benefits of union-negotiated contracts can excuse themselves from paying union dues. In doing so, the Justices overruled a Supreme Court precedent that, as it happens, was nearly as old as Roe v. Wade. (Chief Justice John Roberts, who has made much of his reverence for stare decisis, joined in the trashing of this precedent, and will likely join his colleagues in rejecting more of them.) The decision not only cripples public-sector unions—itself a cherished conservative goal—but does so, oddly enough, on First Amendment grounds. The majority said that forcing government workers to pay dues violates their right to free speech. But, as Justice Elena Kagan wrote in a dissent, this is “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” She added, “Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long.”

 Anthony Kennedy didn’t spend his entire career on that road, and there is, in his best opinions, the kind of decency and empathy that characterized many of the moderate Republicans who once dominated the Court, such as Justices Potter Stewart, Harry Blackmun, and Sandra Day O’Connor. Kennedy’s words at the conclusion of the Obergefell opinion deserve to be his judicial epitaph. “It would misunderstand these men and women to say they disrespect the idea of marriage,” he wrote. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” But the Constitution grants only those rights that the Supreme Court says it grants, and a new majority can and will bestow those rights, and take them away, in chilling new ways.

The List Won Trump the White House. Now Democrats Are Using It Against Him.

By Lorraine Woellert and Christopher Cadelago, Politico

03 July 18

Trump’s highly publicized list of potential Supreme Court nominees has given liberals plenty of time to craft a campaign against his pick.

t’s the list that won him the presidency.

 President Donald Trump’s widely publicized list of potential Supreme Court nominees brought conservative doubters — including evangelicals — to the highly unconventional Republican nominee’s side. It prevented them from fleeing as the “Access Hollywood” tape threatened to tank Trump’s campaign. And it reassured them throughout Trump’s turbulent presidency, especially when he pulled from it to ensure Justice Neil Gorsuch’s smooth ascent to the high court.

 Now, it’s warding off the chaos that grips other facets of Trump’s administration as he weighs another Supreme Court nominee.

 Within moments of Justice Anthony Kennedy announcing his retirement, Trump told reporters he’d be picking his replacement from the list, sending a clear signal that the often-rogue president understands how he can’t risk alienating the conservative base heading first into midterms and then his own reelection bid.

 But this time around, the list has become a liability, too, as swing-vote Republicans urge Trump to think bigger and Democrats use it to get a running start in their campaign against Trump’s forthcoming pick.

 Still, the White House believes the defined universe of names makes the posturing around who will ultimately be selected less dramatic, Republicans involved in the decision-making said. And because the more than two dozen names on the list are cut from the same cloth as Gorsuch, they argue, endangered Democrats who backed Gorsuch will find it difficult to vote against another candidate from the list.

 “People have to understand that this is the most transparent judicial selection process we’ve ever had,” said Leonard Leo, an outside adviser to the president and an architect of the list itself, which was first released in mid-2016. “The president’s driving the process.”

 The list has focused media coverage on potential choices and reinforced the theme that Trump is looking at qualified individuals with proven records that are right of center, said Ron Bonjean, who handled White House communications during the Gorsuch confirmation.

 “Doing this sends a direct message to conservatives and outside groups in order to stoke enthusiasm that the president is considering judicial nominees that are right up their alley,” Bonjean said. “As Trump shortens the list, it creates a buildup of news coverage and suspense about who will be the final choice.”

 Yet as Trump faces a self-imposed July 9 deadline to name Kennedy’s replacement, critics are using the president’s transparency against him. They’re digging through old cases and already producing ads targeting potential nominees, fearful that the next justice could tip the balance on abortion rights, affirmative action and a host of other hot-button issues.

 “The list has given his opponents a head start,” said Brian Fallon, executive director of Demand Justice, a new group that plans to spend $5 million opposing Trump’s pick. “We’ve gone through all the public records. We’ve read their cases, we’ve watched all the video footage of all the public speeches.”

 Democratic Sens. Kamala Harris of California, Kirsten Gillibrand of New York and Jeff Merkley of Oregon have already promoted the #ditchthelist hashtag on Twitter, with Harris dismissing the individuals on Trump’s list as “complete non-starters.”

 “The American people deserve a Supreme Court justice who will fight to protect their rights, not conservative ideologues,” she wrote on Twitter.

 Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, two pro-abortion rights Republican votes Trump will need to get any nominee confirmed, have joined the call to ditch the list as the public debates over abortion and guns grow louder.

 Collins has reservations about several people on the list and has voted against at least one of them, William Pryor of the U.S. Court of Appeals for the 11th Circuit, who once called the landmark abortion rights case Roe v. Wade “the worst abomination of constitutional law in our history.”

 In a meeting at the White House last week, Collins and Murkowski asked Trump to consider adding names to the list.

 “I think the president should not feel bound by that list and instead should seek out recommendations to ensure that he gets the best possible person,” Collins said Sunday on ABC’s “This Week.”

 All presidential administrations maintain Supreme Court shortlists, but Trump’s public release was unique, said Ronald Weich, who served in President Barack Obama’s Justice Department and worked on the nominations of Justices Sonia Sotomayor and Elena Kagan. Before joining the Obama administration, he worked as counsel to Senate Democrats to oppose George W. Bush’s nominations of Chief Justice John Roberts and Justice Samuel Alito.

 “The fact that his list is very public makes the stakes clear for everybody,” said Weich, now dean of the University of Baltimore School of Law. “We have a clear sense of the kind of nominee this president plans to nominate, and that gives everyone time in advance to analyze their writings and opinions.”

 That’s exactly what Democrats are doing. A coalition of progressive groups organized under the Demand Justice banner has launched a ditch-the-list campaign urging Trump to choose a “consensus moderate.” If Trump doesn’t, the left is ready.

 “We can run a pretty standardized opposition against whoever he picks. They all belong to the same club,” Fallon said.

 As the left takes aim at the list, some would-be candidates, such as Pryor, will be easier to tarnish. Trump could call the Democrats’ bluff by choosing someone who has a scant record on sharply divisive issues such as abortion or guns. And if Trump does ditch the list, he’s not likely to abandon the judicial mindset it represents.

 “If by some chance he did go off the list, I have no doubt he would pick somebody who probably should’ve been on the list to begin with,” said John Malcolm, vice president of the Institute for Constitutional Government at The Heritage Foundation and another architect of the list.

 “They’re just going to throw whatever mud on the wall they can dig up,” he said of Democrats. “It’s a great list, and I see no reason for the president to deviate from that list.”

 The list was born in May 2016 as a political tool. Even though he had secured enough delegates to win the Republican nomination, Trump had yet to win over skeptical establishment leaders and remained a long-shot candidate. Dubious about his conservative bona fides, grass-roots activists were plotting to stop him at the party’s national convention in July.

 At the time, Senate Majority Leader Mitch McConnell was refusing to consider President Barack Obama’s nominee to replace the late Justice Antonin Scalia.

 The original list, with 11 names, acknowledged that Trump was listening. And it came with a promise he would use the list “as a guide to nominate our next United States Supreme Court Justices.”

 That was enough to persuade conservatives to trust Trump to follow through on his word, said Carrie Severino, chief counsel at Judicial Crisis Network.

 “This issue is really what gave Donald Trump the presidency,” Severino said.

 By the end of July, Trump had won the nomination and was in Cedar Rapids, Iowa, campaigning with his list.

 “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges,” Trump told the crowd. “Have no choice. Sorry, sorry, sorry.”

 For all its benefits, the list itself can’t prevent surprise outcomes.

 Justice Clarence Thomas’ nomination was rocked by explosive testimony from Anita Hill about sexual harassment she allegedly endured from Thomas. Douglas Ginsburg asked the president to withdraw his name after admitting to marijuana use. And President Lyndon Johnson’s appointment of Abe Fortas to succeed Chief Justice Earl Warren was stymied.

 Weich cautioned not to put too much stock in the smooth nature of the Gorsuch confirmation process.

 “He had one successful disciplined nomination the first time,” he said. “Let’s see how it goes this time.”