Which is why, notwithstanding this final, disappointing term, his departure is so alarming. And why this must be another Bork moment — insisting on a nominee who is, to invoke the language of the Bork debate, within the broad mainstream of judicial thought.
And one who, like swapping Kennedy for Powell, will not radically alter the balance of the court. A nominee should be considered on his or her merits, primarily, but it is politically naive and, I think, substantively mistaken not to take into account the impact of that nominee’s views on the overall balance of the institution.
The court functions best — it tends to produce better-reasoned opinions, more acceptable to the public — when it does not tilt too decidedly in either direction. If regular order had been followed, Justice Merrick Garland would be sitting on the court, occupying a centrist role; his shameful absence offers another argument for insisting that Kennedy’s replacement display some of Kennedy’s qualities of moderation.