How do we know that Donald Trump’s singular focus on transforming the judiciary has succeeded in at least frightening his political opposition? This missive to Supreme Court Justice Anthony Kennedy yesterday from the editorial board of the New York Times confirms it. In an unsigned editorial, the Gray Lady’s board literally begged Kennedy to postpone retirement, perhaps for as long as six years — as long as it takes to get a Democrat into the White House, apparently:
Dear Justice Kennedy,
As you have no doubt heard, rumors of your impending retirement are, for the second year in a row, echoing around Washington and across America. While you and your colleagues on the Supreme Court were listening to the final oral arguments of the term in recent days, those rumors were only growing more insistent.
How can we put this the right way? Please don’t go.
Couldn’t the editors of the New York Times come up with someone who would put their name on this cri de coeur? It might have proven a little less embarrassing. Instead, the institutional voice of the paper has now been put foursquare behind the proposition that Supreme Court justices should embrace presidential politics in the execution of their jobs, which most definitely includes deciding when to retire from them.
And oddly, they make that argument in the context of elections mattering. Why else do they fear the next nomination?
Your record is more conservative than liberal, but there’s no question that you are less of an ideologue than anyone President Trump would pick. How do we know? Look at his first nominee, Justice Gorsuch. Perhaps you were comforted by this choice — a well-qualified judge who clerked for you, and who would have been on any Republican’s short list. But Justice Gorsuch has already made it clear that while he’s a fan of individual liberty, at least in some cases, he is unlikely to go to great pains to protect your most cherished values — equality and human dignity. While a court with two Gorsuches would be quick to vote in favor of religious bakers, it would not be eager to broaden the constitutional rights of gays, lesbians and other vulnerable groups — let alone protect women seeking to control their own bodies.
Justice Gorsuch replaced Antonin Scalia, a move that didn’t disrupt the balance of the court. Replacing you with a hard-line conservative, in contrast, would have enormous consequences for the nation’s laws and Constitution for decades to come. Just ask Sandra Day O’Connor, your onetime fellow swing justice who left the court in 2006 and now watches helplessly as her replacement, the arch-conservative Samuel Alito Jr., votes to tear down her legacy.
Well, just ask those who voted for Barack Obama. Do they really think Sonia Sotomayor and Elana Kagan are judicial centrists, or did they cheer because they’re reliably on the Left?
Ironically, this problem wouldn’t exist if it hadn’t been for decades of judicial activism that turned the Supreme Court and the federal judiciary into the spoils of victory. Both parties campaign on judicial appointments, especially to the Supreme Court. In a well-balanced system, judicial review would avoid setting policies such as those mentioned above and leave policy where it belongs — in the legislature. Instead, the courts have steadily eaten away at legislative jurisdiction by divining new meanings for the Constitution based on emanations, penumbras, and sheer arrogance.
Now that they have, voters and politicians see the courts as the most effective and enduring exercise of political power. And what has the NYT and others panicking is that Trump and Republicans have become extremely effective at fighting that battle, thanks in large part to Harry Reid’s nuclear option that allowed Obama to stack the DC Circuit five years ago:
The Republican-led Senate confirmed Trump’s 15th appeals court nominee this week — more than the last five presidents at this juncture — with eight of the new judges in their 40s, and seven in their 50s. McConnell set the stage Thursday to confirm six more, one day after a committee voted to cut debate time, which if approved would further speed things up.
The court realignment is the product of the Senate Republican leader playing a long game by holding up then-President Barack Obama’s court nominees and then closely collaborating with Trump’s White House Counsel Don McGahn. Both men have made it a priority to advance judges ensconced in originalist legal thinking favored by the Federalist Society, which distrusts New Deal-era jurisprudence and seeks to limit the federal government’s ability to assert powers that aren’t explicitly enumerated in the Constitution.
“The judicial enterprise that has been embarked on by the president and McConnell is the most successful effort we’ve seen in the GOP in the last year and a half,” said Leonard Leo, an outside adviser to the White House on judicial selections who also serves as the Federalist Society’s executive vice president.
Frankly, the NYT might be better advised to get a few more Gorsuches on the top court. A court with a majority of originalists would likely end up limiting judicial authority and force tough political decisions back on elected officials in the legislative and executive branches. In the meantime, though, enjoy the lachrymose pleas to Kennedy to stay on the job until he dies or Trump leaves, whichever comes first.