A New York Times analysis of the 2013 term found Kennedy “smack-dab in the middle,” the only justice with 50 percent of his votes liberal, and 50 percent conservative. He always is first or tied for first in being in the majority of 5-4 rulings, and in 2013, he was the only judge in the majority of every 5-4 ruling.
He has rejected the “swing vote” label and its crass political overtones. But he has also revealed his understanding of the politics inherent in the job, telling a conference last year: “If you have five, you can say what you want.” He knows he is often number five, and he knows it matters.
It is understandable he wouldn’t have wanted to retire while Democrats had full control over his replacement — he is still more conservative than liberal.
Obama’s dreams of nudging the court leftward were squelched by the midterms, if they weren’t already dashed by Ginsburg’s and Breyer’s obstinacy. Given the opportunity, the president would likely be able to nominate someone somewhat to the left of Kennedy, but it would have to be someone with impeccable credentials, a record of impartiality and no trace of ideological activism to make it politically treacherous for Republicans to reject him or her. In other words, someone who can swing.
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