Trump just got a nice present before a heated midterm election.
On the final day of the supreme court’s latest session, Justice Anthony Kennedy announced he would soon retire. The 81 year old judge, nominated by President Reagan, would give Donald Trump his second nomination to the highest court in the United States.
“For a member of the legal profession it is the highest of honors to serve on this Court,” he wrote in his resignation letter to President Trump. “Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how to best know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.”
Kennedy has often been considered a “swing vote” in court decisions, but even that is debatable. His decisions to vote
yes on the right to abortion and to same-sex marriage could be considered liberal, if you consider basic human decency to be that, but he more often than not voted with the conservative side of the court. Kennedy helped end the Florida recount for the 2000 Bush Gore election, handing Bush the presidency. He chipped away at the Voting Rights Act, was anti-labor, and gave us the astronomically stupid Citizens United decision, flooding politics with even more dark money.
He wrote long, self-aggrandizing opinions about the mysteries of human life, but left no actual law to protect the rights he supposedly recognized. Kennedy’s legacy will be that he was a Justice who loved nothing more than to read his own words, and his last decision, to offer his seat to Trump, will be the only one anybody remembers him for in the next 50 years. Another conservative justice will mean a generation of rulings that will dismantle any and all hard fought progress that has been made. Don’t get the impression that Trump “strong-armed” him out either; Kennedy’s two sons are deeply connected to Trump, and one was even a member of the Trump transition team.
Even worse, Kennedy’s successor seems to be just as much a hypocrite. Brett Kavanaugh, a 53 year old, staunchly conservative federal judge, once served under the Kenneth Starr investigation into President Bill Clinton, and was made a federal judge under George W. Bush. Years later, Kavanaugh argued that a President should not be subject to criminal investigation. Whether or not you believe the Mueller investigation will lead to the President, the notion that anyone, especially the President, should be immune to criminal investigation and prosecution, is insane. It would make the President a King in all but name, and threatens the very bedrock of America’s principles; that we are a nation governed by law, not those above it. Though it seems more often than not that this ideal has been tread upon.
This appointment has little to do with who would actually be good for the position, and all about patronage and ideology by party lines. Kavanaugh served as a clerk for Kennedy for several years, and was likely chosen as a successor in negotiation for Kennedy’s retirement. I extremely doubt Trump actually cares about Kavanaugh’s bonafides, or even knew the man existed before last week. If Trump was actually searching for a candidate in sync with his values, he would have selected someone more like himself: a debaucherous, model marrying, 5th Avenue dwelling, libertine.
We don’t know yet how exactly this confirmation fight will go, but more likely than not it will end in Kavanaugh’s confirmation. Democrats will hem and haw about stolen court seats or Roe v Wade, but when it comes to taking action they will choose decorum over morality. This destined confirmation fight still highlights centuries old issues in the court, and we have to ask now, can we save it? There are essentially two, non-exclusive options. One, we must enact a mandatory retirement age for justices. The other is that we must increase the size of the court.
The first is much less controversial: lifetime appointments to the court must be removed. Judges are bought and sold with no consequence. One such example is Clarence Thomas, whose wife received an anonymous $500,000 donation shortly before he approved Citizens United, or the late Antonin Scalia, who was found dead during an all expenses paid trip to a Texas resort. The supreme court is also entirely self-regulated, as justices are not bound to the strict code of conduct that other federal judges must follow. There have been several instances where it is discovered after the fact that a justice had a conflict of interest in a case, but did not recuse themselves.
When the supreme court was established, average life expectancy in the United States was only 40 years. That number has since doubled, leaving concern over mental faculties of more elderly judges, but the political nature of the court exploits that. Fix the Court, a judicial reform group, said “life tenure gives justices the perverse incentive to stay on the court until a President with whom they tend to agree is in the Oval Office – meaning some justices keep their seat until the “right” person is elected to the White House.” It also turns the nomination process not into who will be best for the position, but who will be the most “ideologically pure” for their party, and will live the longest.
As for how long, Fix the Court believes it should be a single, 18 year term. “A single, standard 18-year term at the high court would restore limits to the most powerful, least accountable branch of American government, increase the rotation of justices serving and broaden the pool of potential nominees – all positive outcomes no matter where you see yourself on the political spectrum.”
The other potential solution is the addition of more justices onto the supreme court. While the size of the court is currently nine judges, there is nothing in the constitution that limits it to that. In fact, the supreme court was originally only five justices, later becoming nine in 1837. In George Washington Law Professor Jonathan Turley’s “Is The Supreme Court Too Small?” he calls the court “so small that the views of individual justices have a distortive and idiosyncratic effect upon our laws – a problem that most other countries have avoided with larger courts that allow a broader range of views and experiences.”
A larger court isn’t exactly unheard of. The highest courts in Germany, the United Kingdom, Spain, and India all have 12 or more jurists. In France, there is over 124. Sentiment against it is driven by the memory of President Franklin Delano Roosevelt’s attempt to add six more judges. While this was an obvious gambit to prevent the supreme court from striking down the New Deal, the addition of more justices doesn’t have to be so partisan. Professor Turley, for example, proposed that while the court should be increased to 19, no President would be able to nominate more than 2 justices.
While I would prioritize putting forth term limits before increasing the court’s size, it has been abundantly clear that things cannot merely continue business as usual. The system already broke over two years ago when the Senate refused to even consider Merrick Garland’s nomination under President Obama. Now we have to roll up our sleeves and fix it before all of our rights are dismantled one by one.