The retirement of Justice Anthony M. Kennedy after three decades on the Supreme Court presents President Trump with a fateful choice.
He can nominate an extreme ideological conservative likely to receive only or mostly Republican votes in the U.S. Senate, pleasing his base but perpetuating the hyper-politicization of the court that reached its low point with the Republican Senate’s refusal in 2016 even to consider Merrick Garland, former President Obama’s third nominee to the court. Such a nominee would no doubt seek, if confirmed, to roll back Roe vs. Wade or to ease reasonable restrictions on guns or to weaken even further the nation’s campaign finance laws.
Or, alternately, Trump could take a deep breath, rein in his most partisan, populist tendencies and put forward a nominee who will help nudge the court in a positive direction. Since that person is unlikely to be a liberal — Trump’s politics won’t lead him to a new Ruth Bader Ginsburg or Thurgood Marshall — let us make another suggestion. Trump could choose someone in the mold of Kennedy when he was nominated by President Reagan in 1987: an experienced, open-minded judge of generally conservative views who can command bipartisan support in the U.S. Senate.
Republican senators who value Kennedy’s legacy should make it clear to the president that they won’t support a polarizing or extreme candidate. As was not the case with Trump’s nomination of Neil Gorsuch to replace Antonin Scalia, the selection of a successor to Kennedy could dramatically alter the balance on the court.
Kennedy, for example, was in the majority when the court in 1992 reaffirmed the “essential holding” of Roe vs. Wade, the 1973 decision legalizing abortion. During one of his debates with Hillary Clinton, Trump was asked if he thought the 1973 decision legalizing abortion should be overturned, and he replied: “That will happen automatically in my opinion because I’m putting pro-life justices on the court.”
Kennedy’s continued presence on the court seemed to ensure that a constitutional right to abortion was secure. If Kennedy were replaced by a nominee eager to revisit Roe, that situation potentially could change.
The selection of federal judges, including justices of the Supreme Court, has been poisoned by excessive partisanship for several years; the outrageous obstruction of the Garland nomination was only the most extreme example. Gorsuch was confirmed on close to a party-line vote, partly a reflection of Democratic anger over the obstruction of Garland. But a significant number of Republican senators voted against the confirmations of Justices Sonia Sotomayor and Elena Kagan, Obama’s other nominees. Meanwhile, the court itself often divides in politically sensitive cases with Democratic appointees on one side and Republicans on the other.
Now is not the time for a polarizing Supreme Court nomination. Kennedy was nominated to the court after Reagan’s first choice for the vacancy, Robert H. Bork, was rejected as too extreme by the Senate and his second choice withdrew from consideration after revelations that he had smoked marijuana. The choice of Kennedy, a respected judge on the U.S. 9th Circuit Court of Appeals, won bipartisan praise and he was confirmed by a 97-0 vote. Trump should nominate a successor who will win comparable support.