Tag Archives: Anthony Kennedy

A political ad for a SCOTUS nominee?

I thought I might have been the only American who found this strange. I was wrong.

A friend of mine posted a pithy question on Facebook that asks: Who the hell runs an ad backing a Supreme Court nominee?
What is he, soap? Fast food?

Maybe you’ve seen the political ad. A young law clerk who describes herself as a Democrat sings the praises of Brett Kavanaugh, who’s been nominated for a seat on the U.S. Supreme Court; if he’s approved — and he will be — Kavanaugh will fill the spot held since 1988 by Justice Anthony Kennedy.

But my friend is correct. The ad touting Kavanaugh as if he’s a partisan politician seems to cheapen the entire endeavor of senatorial confirmation.

Very strange. In my humble view.

SCOTUS pick fueled by ratings

Donald J. Trump just cannot shuck his past as a TV celebrity.

Thus, the president of the United States plans to announce his selection to the U.S. Supreme Court at 9 p.m. Monday.

That’s prime time, man!

Many millions of eyes will be on him when he trots out the next nominee to the court, the individual who is expected to succeed Justice Anthony Kennedy, who’s retiring at the end of the month.

I won’t belabor the point, but it does seem cheesy and it seems to devalue the importance of the selection. I remain somewhat concerned that when Trump announces the name of the individual that he’s going to make this event more about him than about the person who’ll don the black robes and make critically important decisions that affect all Americans.

That’s the Trump way.

Will the SCOTUS pick adhere to the RBG Rule?

I’ve been hearing some chatter in recent days about the RBG Rule, named after Supreme Court Justice Ruth Bader Ginsburg.

President Clinton nominated Justice Ginsburg to the high court in 1993 and she promptly made one thing clear: She would not comment on any question that she believed could compromise the integrity of a decision she might make in a future court hearing.

Her intention was to avoid revealing how she might rule.

The RBG Rule has stood the test of time over the past 25 years.

Donald J. Trump is set to select someone to succeed Justice Anthony Kennedy, who is retiring at the end of this month after 30 years on the Supreme Court.

Here’s my hope for the next pick: He or she should make the same pledge that RBG made in 1993. What’s more, liberal members of the U.S. Senate Judiciary Committee, which will consider the merits of this nomination, should honor that nominee’s pledge … if the nominee makes it.

There likely will be plenty of grist to pore through once the president reveals the identity of his nominee. I keep hearing that all the finalists the president is considering have considerable judicial experience and have developed lengthy and clearly defined paper trails that reveal much about their judicial philosophy.

Should whoever gets nominated be forced to answer how he or she would vote on, say, Roe v. Wade, or on the president’s travel ban, or on affirmative action, or campaign finance?

This nomination is likely to proceed to a relatively swift up/down vote on confirmation, despite the concerns of many that we ought to wait for the midterm election to determine the Senate composition. The Senate majority leader insisted on the completion of an election prior to considering someone to replace the late Antonin Scalia, right?

If the Senate is going to plow ahead with a confirmation process to determine who succeeds Justice Kennedy, then the RBG Rule needs to stand.

Pure politics drives this SCOTUS nomination

The federal judiciary isn’t political? It isn’t driven by partisan politics?

Excuse me while I bust out laughing.

There. Now I feel better.

Donald J. Trump reportedly has narrowed his short list of U.S. Supreme Court justice candidates to an even shorter list. It’s good to ask: Do you think the president is poring over written opinions, legal scholarship and the candidates’ judicial records to help him make this pick?

I don’t believe that’s the case.

Unlike some of his predecessors — namely Barack H. Obama, who taught constitutional law before entering politics — this president depends seemingly exclusively on the politics of the moment and on whether he likes whoever he might select for a lifetime appointment to a federal judgeship.

This is a big one, folks.

Roe v. Wade — the landmark 1973 ruling that made abortion legal — is on the line. Do you believe the president has studied the implications of that ruling, that he understands its legality?

Justice Anthony Kennedy’s pending retirement gives Trump the chance to make his second Supreme Court appointment. Think of this, too: It’s only a year and a half since he took office. How many more appointments do you think this president can make before his time is up?

Then there’s the question of whether the Senate should consider this appointment before the midterm election. Given the masterful obstruction that Senate Majority Leader Mitch McConnell performed to block Obama’s selection of Merrick Garland to succeed the late Antonin Scalia, there might be a push to delay this vote into 2019. Don’t bet on it, though, given polling that suggests Americans want the Senate to proceed.

I have one more issue to raise quickly. Trump said he won’t ask his court candidates how they would vote on reproductive rights. Do you take him at his word?

Neither do I.

The drama is about to get real thick.

‘Swing vote’ will switch chairs at SCOTUS

Before we get all worked up and apoplectic over the individual who will get Donald J. Trump’s nomination to the U.S. Supreme Court, let’s consider the reality of the departing justice, Anthony Kennedy.

Kennedy has been hailed as a crucial “swing vote” on the court. He sides with liberals on occasion, but mostly sides with the conservative majority.

It’s good to understand that the conservative justices hold a 5-4 majority on the court. That majority won’t change.

Indeed, I am of the opinion that’s being shared that the next swing vote will likely belong to none other than Chief Justice John Roberts, who on occasion has sided with the liberal bloc of justices on key decisions, such as the ruling that upheld the Affordable Care Act.

The court’s conservative-liberal balance won’t change fundamentally, in my view, with whoever the president nominates.

The serious crap storm is going to erupt in the event one of the court’s liberal justices decides to call it a day.

However, the president’s selection — which he plans to announce on July 9 — is no doubt going to endure the kind of public scrutiny not seen since, oh, Robert Bork was defeated in 1987.

The symmetry of that fact also is fascinating.

The U.S. Senate rejected Bork’s nomination; then Douglas Ginsburg pulled out after admitting to smoking weed while in college. President Reagan’s third pick for the court? Anthony Kennedy.

Wait for Mueller before making SCOTUS pick?

An interesting idea is being floated by those with some stake in the president’s next selection for the U.S. Supreme Court.

It goes like this: Donald Trump should wait for special counsel Robert Mueller to finish his probe into the “Russia thing” before making his choice known. Think for a moment about this. What if Mueller determines there is some criminality involved in the Trump presidential campaign’s dealing with Russian goons who meddled in our 2016 election? What happens if that case ends up eventually before the nation’s highest court?

Does the president deserve to select someone who might have a material interest in determining the legal fate of a case involving the president, his campaign and, indeed, the presidency itself?

There’s plenty of chatter already that Senate Majority Leader Mitch McConnell should allow the midterm election to determine the Senate composition before sending this nomination up for a Senate vote; the Senate must confirm this appointment. McConnell did manage to block President Obama’s nomination of Merrick Garland in early 2016 shortly after the death of Justice Antonin Scalia. Obama had nearly a year left in his presidency, but McConnell said the Senate needed to wait until the presidential election before considering anyone for the court.

Mueller well might be getting near the end of his exhaustive probe. Should we wait for the special counsel to finish his task and deliver his report to America? Sure. Why not?

SCOTUS becomes a midterm campaign issue

The midterm elections are four months away. The entire U.S. House of Representatives is up for grabs, along with one-third of the U.S. Senate.

But forget about the individual seats taking center stage. My hunch is that the Supreme Court will rise to the level of Campaign Issue No. 1, particularly as it involves the Senate.

Senators will get to decide who succeeds Anthony Kennedy, who retires at the end of July from the seat he has held for 30 years on the nation’s highest court.

Kennedy is considered a “swing vote.” Donald Trump is likely to nominate a hard-core conservative to succeed him. The balance of power on the court could change for decades to come.

Whoever gets confirmed could determine the fate of women’s reproductive rights, myriad issues involving religion, campaign finance, environmental regulations.

Do you think the federal judiciary is “above politics”? Guess again.

Politics is part of the judiciary

It’s important to disabuse ourselves of a myth regarding the selection of federal judges.

That myth suggests that the federal judiciary — at every level — is somehow insulated from politics. It isn’t. If we’re honest with ourselves, we’ll acknowledge that politics has played a huge role in the selecting of these men and women.

The nation is about to witness the nomination and pending confirmation fight over the next justice to the U.S. Supreme Court. Justice Anthony Kennedy has announced his retirement after 30 years on the nation’s highest court.

The fight already has begun. Democratic senators are pledging to wage all-out political war against a Republican president who’ll nominate Kennedy’s successor.

Let us not be coy, either, about the benchmarks that Donald John Trump is going to lay out in front of the person he nominates. That individual will have to oppose a woman’s right to choose an abortion; he or she will have to stand with the president on many other issues, such as immigration and civil rights, campaign finance and environmental protection.

Will the president ask this individual in so many words how he or she would decide an issue that comes before the court? I would hope not, although given Trump’s ignorance of government and decorum, it wouldn’t surprise me in the least that he would pose the question.

These nominations are driven by politics seemingly as much as they are driven by judicial philosophy, credentials and legal standing.

The founders created a system that grants lifetime appointments for federal judges with the notion that they would immune from political pressure. They were only partly correct. The immunity kicks in after they are confirmed. The confirmation battles become all about the politics of the moment, of the individuals being considered and of the president who nominates them.

So, the fight begins. It’s a political battle of the first order. Just as it’s always been.

The battle has begun for this SCOTUS seat

Justice Anthony Kennedy’s decision to leave the U.S. Supreme Court has launched arguably the greatest court confirmation battle we’ll see in the next 50 years.

Kennedy is seen as a “swing vote” on key decisions, siding at times with the liberals on the court, but mostly with the conservatives. He was, after all, nominated by President Reagan.

The fight will be fierce. It will get ugly. It will show us just how creative Senate Democrats can get in their vow to fight this nomination to the hilt — if they decide to take it all the way.

I’ll make this prediction, though: If this fight gets as bloody as many of us believe it will, do not expect any of the liberals on the court to leave the bench for as long as Donald Trump is president of the United States.

And let us put down forever any notion that politics doesn’t drive the (a) nomination of a justice or (b) his or her confirmation by the U.S. Senate.

Rethinking the notion of ‘presidential prerogative’

I long have believed in the concept of presidential prerogative, meaning that presidents have the right to appoint people to high office assuming those people are qualified to do the job to which they have been appointed.

U.S. Senate Majority Leader Mitch McConnell, however, has disabused me just a little bit from that long held belief.

McConnell ignored presidential prerogative in 2016 when he blocked President Obama’s nomination of Merrick Garland to the U.S. Supreme Court. There was a year left in Obama’s tenure as president; Antonin Scalia had died and Obama selected a true-blue moderate to the highest court in America.

McConnell blocked it. He said the Senate shouldn’t consider a Supreme Court nomination during an election year.

His obstructionism infuriated many Americans. Me included. I believed the president had the right to select whoever he wanted, given that he had been re-elected in 2012. I also have said the very same thing about presidents regardless of party over many years. You can look it up. Honest. I have.

Now, though, we have another president getting ready to select someone to succeed Justice Anthony Kennedy, who is retiring at the end of July. I normally would give Donald Trump the green light on this one. Except that McConnell laid down a rule that he forced the Senate to obey in 2016.

Two years later, doesn’t that rule still apply? Hey, what’s good enough then should be good enough now.