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Tomasky writes: "No one expected Kennedy to allow Donald Trump to pick his successor. But he has. And it should forever taint his legacy as a jurist."

Anthony Kennedy. (image: Daily Beast)
Anthony Kennedy. (image: Daily Beast)

Anthony Kennedy, You Are a Total Disgrace to America

By Michael Tomasky, The Daily Beast

02 July 18

No one expected Kennedy to allow Donald Trump to pick his successor. But he has. And it should forever taint his legacy as a jurist.

t’s been a few days now, but the shock of Anthony Kennedy’s retirement announcement hasn’t abated a bit. This is partly because of the ghastly coming ramifications, more on which later. But it’s also because I honestly didn’t think Kennedy would allow Donald Trump to name his successor.

I thought he had more respect for the United States of America than to allow this corrupt gangster who’s almost certainly never read a Supreme Court opinion in his life to name his successor. Yes, Kennedy is conservative, so to that extent it makes sense that he’d want a Republican president to make the call, and maybe it’s just that simple. But whatever his motivation, Kennedy has altered and destroyed his legacy.

Let me put it this way. If I owned a restaurant and he walked in, I’d serve him dinner. But if the other diners mocked and shamed him, I wouldn’t exactly cry.

Until last week, Kennedy’s legacy was going to be that of a basically conservative but sometimes interesting jurist. He was awful on money in politics. Awful.

If you never read Jeffrey Toobin’s important New Yorker piece from 2012, a tick-tock on the inside baseball of how the Court decided Citizens United, do so. Toobin shows that it was Kennedy who pushed behind the scenes to move the opinion as far to the right as a majority would accept. When this new Court has struck down any and all limits on campaign donations, as it almost surely will, and this country becomes an open oligarchy, we’ll have Kennedy to thank.

And yet, he helped advance human and civil rights in this country by voting to legalize same-sex marriage. Obergefell v. Hodges was a landmark case that was going to live in history alongside Brown v. Board of Education—a triumphant moment when we as a nation rose above past prejudices, prejudices that will look ridiculous and embarrassing a hundred years from now.

Notice I wrote was going to. Because now, assuming Trump and the Republicans get their justice, it’s only a matter of time before Obergefell is overturned. Look at this map. Most of the countries of the Western Hemisphere have federal laws legalizing same-sex marriage. Canada, Mexico, Argentina, Brazil, Colombia. Someday, the United States will no longer be among them.

Kennedy was also a swing vote, of course, on abortion rights, siding with the liberals and keeping Roe v. Wade law of the land. On Sunday, Maine GOP Senator Susan Collins said seemingly pretty definitively that she’d oppose a nominee who’d overturn Roe.

But all that probably means is that the nominee will lie about it at his or her hearing. Every conservative since Antonin Scalia has sat up there and dispensed obviously insincere tripe about respect for precedent, a history Paul Waldman recounted recently in The Washington Post.

So Collins, reassured by the nominee that s/he will keep an open mind and respects precedent, will cave as she always does.

So this is what Kennedy has done. He has knowingly destroyed that part of his legacy—which was, in fact, his entire legacy, because these were the only interesting and brave things he ever did. And now these precedents will be overturned. Now, Kennedy’s legacy is the destruction of Kennedy's legacy.

But that’s not even the worst part. The worst part is that by retiring in the middle of the Robert Mueller investigation, Kennedy is letting Trump pick one of his own jurors. He obviously had to know he was doing this. And what are we do if the Supreme Court holds sometime in the near future by 5-4, with Kennedy’s successor in the majority, that the president is indeed above the law?

It could be that Kennedy would have been part of such a majority anyway. But if Trump’s two justices are part of that five, it will taint the Court forever, and it will tarnish what remains of our democracy, as the highest court in the land will have ruled that the crookedest president in modern history cannot be called to any kind of legal account.

Kennedy had to have contemplated all this as he pondered his resignation. But he made a decision that renders him not an independent jurist who takes seriously the constitutional responsibility of the judicial branch to check the executive, but just another partisan hack.

And now we learn that on top of everything else, Kennedy may just be corrupt. So his son Justin, if last week’s New York Times account is correct, in essence kept Donald Trump in business for the better part of a decade, overseeing $1 billion worth of loans to the Trump Organization via Deutsche Bank, where he worked. Justin and the Trump kids are buddies, it seems. Justin and Trump himself are palsy-walsy.

This is grotesque. There was once a time in this country, 40 and 50 years ago, when a connection like this might have led an honorable associate justice to recuse himself from every case involving the administration that came before him. Or if not that, at the very least a justice would have cared enough about appearances that he would have tried to stay on until 2021 to see if the country elected a new president, someone who wasn’t arguably saved from bankruptcy and humiliation by his own flesh and blood.

But not only did Kennedy not do that—he chose not to risk the possibility of the Democrats winning the Senate this fall and pulling a Mitch and doing to his successor what McConnell did to Merrick Garland. A jurist who cared more about his legacy would have waited--indeed would have hoped that the Democrats took the Senate, perhaps forcing President Trump to put forward a nominee who was more moderate and who would follow Kennedy's own example on abortion rights and gay rights. But no.

In other words: Anthony Kennedy went out of his way to make sure that a president who was elected with fewer votes than his opponent, and whom time might reveal to have won the White House by cooperating with a foreign adversary, and whose business career was salvaged by none other than Kennedy’s own son, gets to name his replacement—a replacement who is all but certain to undo the only good Kennedy himself ever did.

What kind of person do you have to be to justify all that to yourself? To abet the dissolution of your own legacy? It’s like a kulak handing a Bolshevik a pistol. Except that the real price here will be paid not by Kennedy, but by the millions of Americans who will lose hard-won rights.

May the name Anthony Kennedy live forever in infamy. your social media marketing partner


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+103 # PABLO DIABLO 2018-07-02 13:41
The lawyer who shepherded BUSH v. Gore through the Supreme Court was John Roberts, later appointed Chief Justice by George W. The decision was 5-to-4 with two of the five appointed by his Dad George H.W., but did not recuse themselves. Clarence Thomas's wife has taken $5 MILLION for her causes from defendants before the Supreme Court. Citizens United said giving unlimited amounts of money to politicians does not in itself appear to be "bribery" as there is no quid pro quo.
When did you notice the Court was corrupt??????.
+17 # Cassandra2013 2018-07-02 17:07
And Kennedy a rotten coward for giving in to Trump, the A-hole's bullying!
+64 # joejamchicago 2018-07-02 13:41
spot on
+19 # tclose 2018-07-02 16:12
Agree. He is 100% correct. Kennedy has torpedoed his reputation.
+15 # RLF 2018-07-02 14:08
Barely a glimmer of good in his record...rememb er Citizen's United? the decision that put corporations and the rich firmly in absolute power. It may yet destroy this country. He's just another right wing scum bag with a gay son or daughter.
+17 # moreover 2018-07-02 14:20
Let's face it: So-called Conservatives value only money, control over others, and give a rat's ass about anybody who's not in their inner circle. And that applies to otherwise undoubtedly intelligent people in high positions in the same way than to those who can't come to any rational conclusions if their life depended on it.
If they gain all the power we're heading into dictatorship, fast.
+13 # Jim Rocket 2018-07-02 14:30
The Citizens United ruling did more damage to American democracy than Hitler ever could have.
-24 # skylinefirepest 2018-07-02 14:55
You loonie liberals are absolutely freaking incredible. The man is old and wants to retire and y'all are calling him names...amazing . And then you wonder how in the world did a "non-democrap" get elected president when slick hillie screwed bernie and figured she had no other competition! Get a life, folks, the world will not end despite your misgivings!
+17 # hectormaria 2018-07-02 15:01
Mr. Tomasky, if you are upset with Judge Kennedy, why not with Sen. Manchin and the other Red Balls Democrats (formerly know as Blue Dogs) who voted for extremist Judge Gorsuch and will vote for the next extreme right-wing judge Trump nominates? They only care about being elected, not the democratic principles this country stands for.
+11 # Jaax88 2018-07-02 15:05
The Justices who affirmed Citizens United decision were not only blind mentally, but pulled their punches in favor of the moneyed interests of the wealthy and big business. If nothing else is said about that decision and the guys who voted their approval, it was a Peral Harbor kind of sneak attack on all citizen voters.
+6 # Merlin 2018-07-02 15:21
Michael Tomasky asks:
“What kind of person do you have to be to justify all that to yourself? To abet the dissolution of your own legacy?”

Ridiculous questions.

The first is amply answered in the article. No need to ask.

Legacy? Legacies are written by the rich and powerful and promoted through their lackeys. Their history becomes so distorted you can’t recognize the reality. Tricky Dick is being championed now. raygun is the “greatest” President ever. Why even Obama loves him. His name is plastered on highways and monuments all over the country. “W” is now being seen as a spokesperson. Kissinger…Well, the list goes on and on.

Kennedy will lose no sleep over what we The People think of him and his decisions. His legacy is safe and secure.
+11 # Robbee 2018-07-02 16:17
Anthony Kennedy, You Are a Total Disgrace to America!

Shame on you!
+8 # reo100 2018-07-02 17:14
All of the cases Kennedy has acted on since Trump took office should be vacated!
+25 # Diane_Wilkinson_Trefethen_aka_tref 2018-07-02 18:08
How bad does the GOP have to be before Democrats stop being polite and call the bastards out? Why is it so hard for them to speak truth to evil? I believe in being polite but I also believe that it is NOT polite to lie about the bad things done by members of our government. Whether the lie is by omission or commission is irrelevant.

Last Thursday, 28-Jun-2018, Jon Stewart appeared on The Late Show and said some of the things that, perhaps in more refined language, people in Congress should be saying. Addressing Trump, he said, “One hallmark to your presidency we’re finding the most difficult is that no matter what you do it always comes with an extra layer of gleeful cruelty and dickishness.” Those words brought into focus what is so ESPECIALLY offensive about DJT. It ISN’T just that his policies are anti-American, cruel, hateful, and designed to line his own pockets with as much bling as he can extract from our country. It is the GLEE with which he demeans and disparages others. He is like a small child who laughs at the antics of flies whose wings he has just pulled off or has discovered how much fun it is to incinerate insects with a magnifying glass and watch them slowly burn to a crisp.

“What Donald Trump wants is for us to stop calling his cruelty and fear and divisiveness wrong and to join him in calling it right. And this we cannot do. By not yielding we will prevail. . . unless of course the Democratic leadership continues to be a bunch of feckless …”
+7 # giraffee23 2018-07-03 16:12
Right on, Diane. And isn't DJT following the wishes of Putin? I THINK YES. VOTE
0 # Jaax88 2018-07-16 19:41
Update on trump/Putin. If trump did not bend over for Putin today I do not know what else to call it. Boot licking?
-19 # skylinefirepest 2018-07-02 21:33
Say nobody doing anything about comments tonight? If you're not going to get them on in a reasonable amount of time you should just go back to letting people talk and you, the judge and jury just stay out of it!
+5 # WYThomas 2018-07-03 14:22
#skylinefirepes t You are full of it, and that does not mean beans!
+10 # Wise woman 2018-07-03 21:11
skylinepest, RSN is doing alright allowing your comments to be posted along with the others you don't happen to agree with. Democracy exists on this site but you probably don't recognize it judging by your posts. Why are you wasting your time and energy here anyway? Just for laughs? Surely you can find another form of amusement and leave this site to the more intellectual folks that you seem to abhor.
-9 # skylinefirepest 2018-07-04 13:09
"Allowing my comments to be posted?" What is this, wise woman, a select site not open to anyone but self perceived "more intellectual folks" or is it a site that is open for discussion between individuals who don't always hold the same stupid liberal opinions? I marvel at some of the stuff I read here and wonder why, if you hate this country so much, do you stay? You'd probably be much happier in England where you are simply prey to the thugs since the government has banned private ownership of guns and kitchen knives. Maybe some muslim country where gays, women, Christians, etc. are simply allowed to keep their heads until they make a mistake in public?
+1 # tclose 2018-07-05 19:38
We stay, firepest, BECAUSE we love this country. And are determined not to let in fall into the hands of people like you. That is, we are determined not to just let you "take back your country" as Trump likes to declare, but to steer it in a way that the founders always envisaged we would do.
-2 # skylinefirepest 2018-07-06 14:20
There's ample evidence that the Founders apparently didn't have a liberal bone amongst them! After all it was the Founders that guaranteed our RIGHT to free speech protected by firearms! Wow, there's two things that y'all seem to hate right off!!
0 # Jaax88 2018-07-16 19:49
SLFP: Let me say your are a jerk. I welcome your intelligent comments even if I would disagree. I might learn something from them, such as how much some folks who claim to be Americans do not know anything about civil discourse. You tend to be a man following in trump's footsteps taking discourse through cow pies. If you want any respect you should modify your attitude a bit. That chip on your shoulder is not becoming.

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