Justice Anthony Kennedy’s announcement on June 27 that he will retire from the Supreme Court came as a bracing relief for conservatives and a prophecy of woe for liberals.
Kennedy, though nominated in 1988 by Ronald Reagan, voted with his more liberal colleagues often enough to be considered the court’s “swing vote,” particularly after the retirement of Sandra Day O’Connor (also a Reagan appointee) in 2006. Kennedy wrote the court’s Obergefell decision declaring same-sex marriage to be a Constitutional right; declined to overturn Roe v. Wade in the second landmark abortion case, Planned Parenthood v. Casey; and insisted in Boumediene v. Bush that the right of habeas corpus applied to detainees at Guantánamo Bay. But he joined the court’s conservatives in D.C. v. Heller, which rolled back many municipal gun control laws, and wrote the majority opinion in Citizens United, which struck down laws regulating independent expenditures on political campaigns.
Reagan chose the philosophically indeterminate Kennedy only after the nominations of Robert Bork and Douglas Ginsburg failed—the former because Democratic leaders openly slandered a distinguished jurist. So began the era of ideological warfare over judicial nominations. Two years later George H.W. Bush nominated David Souter, who “grew” on the bench and turned out to be one of the court’s reliably liberal votes.
Donald Trump was elected president in large part because he promised to nominate principled conservatives in the mold of Antonin Scalia, and with the 39 Trump judicial nominees confirmed so far—including Neil Gorsuch to replace Scalia—he has kept that promise. We trust he will nominate an accomplished and principled conservative this time, too—and he has already announced that he will make his selection from the excellent list of conservative judges he announced during his campaign.
Democrats are still embittered by Senate Republicans’ hardball refusal to hold hearings on the man who would have been Barack Obama’s third Supreme Court nominee, Merrick Garland. It’s easy to appreciate their resentment, even if we don’t quite buy their high-minded protestations. If the Democrats held the Senate and one of the court’s liberals died or retired giving a Republican president the opportunity to nominate a third Supreme Court justice in the final months of his presidency, we’re confident they would do the same. Of course, the constitution doesn’t require the Senate to vote on judicial nominations at all, but Senate Democrats know this already: Minority leader Chuck Schumer vowed in 2007, remember, not to hold votes on any further nominations by George W. Bush. Nonetheless we expect Schumer and friends to recruit every bit of that leftover resentment in the coming battle over Kennedy’s replacement.
They might have rested easier if Harry Reid, then Democratic majority leader, hadn’t in 2013 abolished the filibuster for almost all executive and judicial nominations, excluding only Supreme Court nominees. He imposed this major rule change against the vehement wishes of the minority on a party-line vote. So although Democrats could, technically, mount a filibuster against Trump’s nominee, Reid’s foolish abolition of the minority’s ability to stop objectionable nominations guaranteed that Republicans, once back in the majority, would effect the same maneuver for Supreme Court nominations. That’s why there was no filibuster of Neil Gorsuch, and why there will be none of the next nominee. Indeed, thanks to Reid, the only two people whose opinions the administration need worry about are both Republicans: Lisa Murkowski of Alaska and Susan Collins of Maine.
But liberals shouldn’t despair. They fear that the Trump presidency will make the federal bench more “conservative.” But judicial “conservatism,” at bottom, only means constitutionalism. Constitutionalists abide by the law as it’s written, not as they think it should have been written, and their approach often yields results favorable to those of a more liberal or progressive worldview.
Even so, many on the left are beside themselves that Kennedy didn’t wait to retire until a Democrat took Trump’s place. They were counting on some 5-4 victories over the next two years, and those are likely to become 4-5 losses. But this is the world the American left has created with its judicial activism—a world in which many of their most lasting achievements were brought about not by congressional votes but by court decisions. To keep scoring such victories, however, you need to keep winning elections; and Democrats find it harder and harder to dominate America’s elective branches as their opinions and rhetoric creeps further and further to the left. As Justice Kennedy’s departure and the consequent panic of the Democrats remind us, those who live by the courts, die by the courts.
