Now there are “reports” that Anthony Kennedy is considering an end to his judicial career.
The Supreme Court associate justice’s retirement, if it comes next week as some are thinking it might, is going to produce something I suspect the nation’s founders didn’t anticipate when they wrote the U.S. Constitution.
That would be the extreme politicization of the judicial selection process.
Those silly men. Sure, they were smart. They weren’t clairvoyant.
The present-day reality is that the process has become highly political. When did politics play such a key role in selecting these jurists? It’s hard to pinpoint the start of it all. Some might suggest it began with President Reagan’s appointment in 1987 of Robert Bork to succeed Lewis Powell, who had retired. The Senate would reject Bork largely on the basis of his vast record of ultraconservative writings and legal opinions.
Clarence Thomas’s nomination in 1991 by President George H.W. Bush also produced plenty of fireworks, owing to the testimony of Anita Hill, who accused Thomas of sexual harassment and assorted acts of impropriety.
On and one it has gone, through Democratic and Republican administrations ever since.
The founders wrote a provision into the Constitution that allows federal judges to get lifetime appointments. The idea was to remove politics from their legal writings. Indeed, some judges have taken seats on the U.S. Supreme Court with their presidential benefactors expecting them to toe a philosophical line, only to be disappointed when they veer along uncharted judicial trails.
It’s too early to tell whether Justice Neil Gorsuch will fall into that pattern. He was Donald J. Trump’s initial pick for the high court. The president might get to make another appointment quite soon. Then again, maybe not.
Whenever that moment arrives, you can take this to the bank: The next Supreme Court pick is going to ignite a whopper of a political fight if one side of the Senate sees a dramatic shift in the court’s ideological balance.
Something tells me the founders might not have anticipated these judicial nominations would come to this.