Anthony Kennedy is a terrible human being.

June 28, 2018 JanF Featured Posts, Motley Megaphone 8

As a public service, here is a running list of some of the articles related to Justice Anthony Kennedy’s retirement. Kennedy made it clear from his votes in the last session that he wants to make sure that his seat is filled with a reliable Republican (which means while Mitch McConnell’s Republican Party still has control of the United States Senate.) For that – and for the obvious fact that he is doing this simply so that he will still be invited to the best Washington cocktail parties – he deserves our scorn.

#WeCanFixThis.
Get out the vote and get out *and* vote!

Kennedy is the “swing vote” whose swing lately has been all about letting Trump ban Muslims (national security), killing unions (First Amendment), saving Christianity from gay cakes (First Amendment again), saving crisis pregnancy centers from having to say they don’t have medical personnel on staff (what a busy First Amendment!), and murdering voting rights (no reason). And that’s all just in the past week.

Good fking riddance, Anthony Kennedy.

It’s no secret that Justice Anthony Kennedy, who announced his imminent retirement on Wednesday, always had an eye toward his legacy. During this 30-year tenure on the Supreme Court, Kennedy often wrote grandiose opinions that seemed designed to be quoted and admired by future generations. That line of thinking was particularly evident in a series of decisions protecting gay Americans’ right to equal dignity. Yet by choosing to retire under President Donald Trump, Kennedy imperils that legacy, throwing his most celebrated and far-reaching decisions into serious jeopardy.

Anthony Kennedy was a horrible justice, and his last decision was his worst. […] Kennedy was a Cadillac’s intellect in a Lamborghini’s job. His writing ranged from needlessly flowery to completely incoherent. And, while his views sometimes placed him to the left of men like Scalia and Bork, his “liberal” opinions were frequently his most incomprehensible.

Anthony Kennedy’s legacy will be, quite simply, as one of the most critical enablers of Donald Trump and his increasingly white nationalist and anti-democratic Republican Party. Anthony Kennedy’s legacy could have been as a conservative respected for providing key votes to uphold a woman’s right to choose and the right to same-sex marriage. Instead, he shall be remembered as one of the most important allies of President Donald Trump’s pro-business white nationalism.

It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander.[…]

Many of us predicted that Kennedy would not allow Trump to replace him with someone who would dismantle his legacy. We were wrong. Many of us believed that a lifelong devotee of dignity, civility, and the rule of law would not want his work tarnished by a president who routinely attacks individual judges and the very notion of an independent judiciary. We were wrong. That two of Anthony Kennedy’s last judicial acts included a letter that opened “My dear Mr. President” and a vote to grant that same president a virtual blank check on the national security front certainly suggests that nothing about a president who lies, bullies, and destabilizes the rule of law was any kind of real impediment to Kennedy’s departure.

In December of 2000, five Republican justices of the Supreme Court out and out stole the 2000 presidential election. Al Gore would have become president of the United States if the laws of the state of Florida had been enforced by that state’s supreme court, as they indeed would have been if not for this completely lawless act of judicial hijacking.

One significant consequence of that hijacking was that Bush got to put two young hard right ideologues on the Court. […]

In the spring of 2016, Mitch McConnell out and out stole another Supreme Court seat, by violating every precedent and custom in order to block the nomination of Merrick Garland. McConnell completed this theft in 2017 by eliminating the filibuster for Supreme Court nominations, in order to put yet another youthful right wing zealot in the stolen seat.

But that act of legal and political grand larceny couldn’t have been completed if the 2016 presidential election hadn’t been stolen from Hillary Clinton by a combination of the absurdly anti-democratic nature of the electoral college (Clinton got nearly three million more votes than Trump), the willingness of various members of the Trump campaign, including quite possibly Trump himself, to collude with America’s enemy Vladimir Putin to throw the election to Putin’s preferred candidate, the reckless narcissism of third party candidate Jill Stein, and last but far from least, the mind-boggling incompetence shading into malevolence of the legacy media, which decided to treat Hillary Clinton’s email protocol practices as a vastly more significant story than the treasonous behavior of the Trump campaign.

~

I will settle on this take (for now):
– Kennedy had two moments of decency and from that we built a narrative of him as The Good Justice. Yet that ignored that he wrote the majority opinion for Citizens United, he voted to kill the Affordable Care Act (our 5th vote to save it was Roberts’), he VOTED FOR BUSH in Bush v Gore, and he supported the gutting of the Voting Rights Act not once but twice. His votes supporting Roe v Wade were the result of the arguments put forth by his former colleague Sandra Day O’Connor which he felt compelled by consistency to uphold. His Lawrence and Obergefell rulings are the only time he stepped out of the conservative mainstream to rule in favor of human rights – that he is willing to walk away from that progress knowing what will happen says a lot (bad) about him.

A reminder: We. Have. No. Power. To. Block. Any. Nomination. Our Senators will issue press releases which we will dutifully retweet, we will all rail about the hypocrisy of Mitch McConnell and his destruction of Senate norms (p.s. he doesn’t care) and a new justice will be confirmed in August, in time for the new term. We should not waste any political capital on blocking – it is a lost cause – but we can use the Supreme Court as another reminder for the midterms that we can take control of at least one of the branches of government if we get out the vote.

Focus on the midterms, take back Congress. Then let’s see where we are in January 2019.

8 Comments

  1. There are three co-equal branches of government: Congress, the executive and the judiciary. We can’t do anything about the executive branch until the general election in November 2020 puts us back in power in January 2021. We can’t do anything about the current makeup of the Supreme Court and what the court will look like in January 2019. But we can, and we must, take back Congress to create an effective firewall to the excesses of both the executive and the judiciary.

    In January 2009, Congress passed – and a Democratic president signed – the Lilly Ledbetter Fair Pay Act to fix a loophole in the statutes that right-wing justices had used to deny a woman compensation for wage discrimination. Congress can legislate away a lot of the damage a right-wing Supreme Court can do: laws against the use of presidential power to unilaterally block entry into our country over trumped up security concerns, laws protecting the right to choose, laws guaranteeing the right to form unions and collect fees, laws to enshrine a federal right to vote. Many of the rights that are in danger from an activist court are rights that were left to the court and never protected by statute (or corrected after a loophole was discovered).

    What the court gives, it can take away and we need to enshrine in statutes those rights that we consider vital.

    Vote as if your lives depend on it – because they do.

  3. Thanks for this, Jan. Your knowledge is impressive!

    Sigh. But with six evil RWNJs on the court, it will be 50 years before we can reinstate Roe. Even if some states pass laws that women can get abortions and whatever contraception they want, the evil red states will make sure that women can’t.

    If Gore had been allowed to be president, what would the world be like today? We’d all be driving electric cars, that’s for sure.

    • I was reading a thread by someone about what happens in the various states when (not if) Roe is struck down. There will be 17 states where it is legal but surprisingly that does NOT include New York because they never got around to fixing their state law after the Roe ruling. That is legislative malpractice! Wisconsin did the same thing and, sadly, the Republicans got there first and made it more onerous than the original one in anticipation of the day when a truly awful person would be in charge of our courts.

      Here is the problem:

      So we are back to “if you can travel, you can have an abortion.” And the realization that many can’t. the poor can’t. Undocumented can’t. I would expect a federal “no minors can get an abortion in another state” bill, so under 18 can’t.

      Thread by @robinmarty: “okay friends, let’s sit down and have a talk, because it is definitely time. FACT: There is absolutely no way that the next Trump appointee […]”

    • As far as legislatively, we can do anything we want but we might have to wait until some greyhairs retire because it will require nuking the Senate filibuster for legislation. I am pretty sure Patrick Leahy would vote against it because he still believe in Senate Comity. What a chump.

  4. Rick Hasen: The Only Thing That Might Stop Trump From Replacing Kennedy With a Scalia Clone

    Buckle up, folks. If you did not like what the Supreme Court has done in the last few weeks on voting rights, public-sector unions, and Trump’s travel ban, things are going to get a whole lot worse now that Justice Anthony Kennedy is retiring and with conservative Chief Justice John Roberts about to become the new swing justice. There’s precious little Democrats can do, at least in the short term, either to stop the nomination of another clone of Justice Antonin Scalia, or to stop the political benefit President Donald Trump is likely to get from such an appointment. Fixing the Supreme Court will be a long-term project.

    In short order, I expect President Trump to take the safe route and nominate a stellar Scalia clone. My personal expectation is that Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit is a likely pick. […]

    Even if all the Democrats voted no*, there’s no filibuster and no stopping the nominee with their votes. And if you think that senators like Jeff Flake would buck Trump on a nominee like Kavanaugh, forget it. They may disagree with Trump about a lot of things, but not about hard-right judicial nominees.

    Rick goes on to say that “massive protests” might convince Collins and Murkowski. But the problem is that it is unlikely that we would get all the Democrats; Manchin and Donnelly are not going to risk their seats for abortion rights which will not play well in their states. Even Heitkamp and McCaskill would hesitate and we have to ask if it is worth losing the chance to regain the Senate by drawing this line in the sand. We likely lose both the nomination battle and the Senate. So if three Democrats vote for the nominee like they did for Gorsucks, we would have to peel away Collins and Murkowski and two more Republicans. There is simply no “get” to be “gotten”.

  5. Thanks for this Jan…

    It’s pretty obvious that Republicans care about one thing, the power to control the rest of us. So, I have no doubt that Kennedy is stepping down now because he sees Democrats taking back Congress this November and wants to ensure that whoever takes his place will lean right.

    The one thing I don’t understand is how Kennedy, a Supreme Court justice, who’s supposed to rule on the law and not on his political views, could so obviously show his obtuseness.

    • What I don’t understand is how a vain main like Kennedy, who has spent years buffing his legacy, would willingly hand his seat over to someone who will spend every waking moment destroying that legacy. The stories about his children being Trump family friends is disturbing. The corruption of our institutions by wealthy interests reaches deep. It may turn out that Clarence Thomas is not the most corrupt justice on the Roberts Court! Nice legacy, Anthony Kennedy. I hope your son ends up indicted in the Mueller investigation and having to rely on a presidential pardon, putting an asterisk by your name in the history books – “sold a seat on the Supreme Court.”

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