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The Case for Justice Anthony Kennedy to Retire

The Case for Justice Anthony Kennedy to Retire

By Bill Scher - December 15, 2014

Unsentimental liberals spent years begging now 81-year-old Supreme Court Justice Ruth Bader Ginsburg to resign while Democrats controlled both the White House and the Senate. Ginsburg fans retorted that a legend should get to retire on her own terms. She takes the latter view too, having declared this summer, “I will do this job as long as I can do it full steam.”

Her 76-year-old colleague Stephen Breyer, the only other Democratic appointee before Barack Obama’s inauguration, has been mostly spared similar pressure. But the rationale for both to abdicate was the same: so President Obama can replace them with younger judges and ensure a solid liberal bloc on the high court for a generation.

Neither obliged. Now Republicans control the Senate. The debate is moot. It is no longer the perfect time for Ginsburg and Breyer to step down. But it might be the perfect time for Anthony Kennedy’s retirement.

For Kennedy to let a Democratic president and a Republican Senate name his successor would be a fitting bookend to a historic and consequential tenure begun in 1988 thanks to a Republican president and a Democratic Senate.

Like Obama, Ronald Reagan suffered a “six-year itch” midterm in 1986. Obama’s party lost nine Senate seats; Reagan’s lost eight. Six months after Democrats took control of the upper chamber, once that year’s Supreme Court term wrapped, Justice Lewis Powell stepped down.

The Nixon-appointed, 79-year old Powell was a respected swing vote. The Chicago Tribune editorialized days later that his resignation “leaves an emptiness at the center of the Supreme Court.” Expecting Reagan to replace him with a devout conservative, the Tribune suggested that a suitable match of Powell’s intellect would be federal appellate Judge Robert Bork.

Reagan took that advice, daring the Senate Democrats to confirm a nominee who had criticized the 1964 Civil Rights Act, lambasted the Supreme Court decision establishing a broad right to privacy, and written that the Founders intended the First Amendment to only cover speech that is “explicitly political.” Bork was soundly rejected on the Senate floor after a brutal nomination hearing.

In response, Reagan turned to a man who might have proved even more conservative than Bork, Douglas Ginsburg (no relation to Ruth). Unlike Bork he was a youthful 41 and lacked a significant “paper trail,” potentially smoothing his path. But he had the misfortune of being nominated in the “Just Say No” era. Past marijuana use quickly surfaced in the press, sparking a firestorm and forcing him to withdraw only nine days after being nominated.

Four days later, a chastened Reagan served up Tony Kennedy, a respected Californian from Sacramento whom Reagan knew from his time as governor. The initial New York Times report characterized him fairly presciently: “a careful judge of basically conservative leanings who approaches legal problems case by case and has apparently never evinced a desire to change the modern course of constitutional law. Some scholars who have studied his record say his approach is similar to that of Justice Lewis F. Powell Jr.”

In the end, conservatives’ hopes of a Reagan-packed court of strict “constructionists” had been squelched by the 1986 midterms. Divided government dictated that one swing vote replace another.

We can’t know what Justice Kennedy, who turns 79 next year, wants in a replacement, let alone if the temperament of his replacement is a consideration in his internal deliberations. But it would be natural for him to want the court to retain the ideological tension he has done so much to foment. He single-handedly kept the court from veering wildly to the right during the Bush presidency and today induces much anxiety in the Obama White House.

This is the man who wrote the opinions that struck down the anti-gay Defense of Marriage Act and who gutted the McCain-Feingold campaign finance law on the grounds that corporations have political speech rights. He supported the NRA’s interpretation of the Second Amendment as well as the Sierra Club’s interpretation of the 1970 Clean Air Act, which enabled the Environmental Protection Agency to consider global warming regulations. He upheld Roe v. Wade but also restricted its scope to allow bans of late-term abortions. The jurist who found Obamacare lacking constitutional authority also wants the Supreme Court to use more cosmopolitan international law to buttress its opinions.

A New York Times analysis of the 2013 term found Kennedy “smack-dab in the middle,” the only justice with 50 percent of his votes liberal, and 50 percent conservative. He always is first or tied for first in being in the majority of 5-4 rulings, and in 2013, he was the only judge in the majority of every 5-4 ruling.

He has rejected the “swing vote” label and its crass political overtones. But he has also revealed his understanding of the politics inherent in the job, telling a conference last year: “If you have five, you can say what you want.” He knows he is often number five, and he knows it matters.

It is understandable he wouldn’t have wanted to retire while Democrats had full control over his replacement -- he is still more conservative than liberal.

Obama’s dreams of nudging the court leftward were squelched by the midterms, if they weren’t already dashed by Ginsburg’s and Breyer’s obstinacy. Given the opportunity, the president would likely be able to nominate someone somewhat to the left of Kennedy, but it would have to be someone with impeccable credentials, a record of impartiality and no trace of ideological activism to make it politically treacherous for Republicans to reject him or her. In other words, someone who can swing.

Having had many a tangle with congressional Republicans, Obama probably would not need three tries for him to accept he needed a nominee who could pass muster with the opposition party. Obama could even get help from Republicans. Recall that in 1993, President Clinton turned to Republican Sen. Orrin Hatch for advice on who could be easily confirmed. Hatch waived Clinton off of environmentalist Interior Secretary Bruce Babbitt in favor of … Ruth Bader Ginsburg. Hatch still sits on the Judiciary Committee and could again play the same role.

The political circumstances in Washington today in the final years of the Obama presidency are the exact parallel to what we had in the final years of the Reagan presidency, tailor-made to produce a justice in the mold of Anthony Kennedy. His historic constitutional legacy is already secure. Stepping aside after this Supreme Court term is his best opportunity to extend his legacy beyond his years.

Bill Scher is executive editor of LiberalOasis and a contributor to RealClearPolitics. He can be reached at contact@liberaloasis.com or follow him on Twitter @BillScher.

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