Justice Kennedy's Retirement

By Marc Goldstein, Indivisible-Charlottesville, 7/1/2018


President Trump will soon nominate a successor to Justice Anthony Kennedy of the Supreme Court. If approved, this candidate will almost certainly pull the court to the right, endangering reproductive and gay rights, as well as affirmative action. He or she may also help decide questions arising from alleged meddling in the 2016 election.Though Trump hasn’t yet made his nomination, we should plan to oppose it for three reasons.

To protect our rights

Though conservative, Justice Kennedy was the swing vote on the court and sided with liberals in many important cases. He cast the deciding vote in Planned Parenthood v. Casey, for example, which defeated a challenge to Roe v. Wade and upheld the right to abortion. He wrote landmark opinions on LGBTQ equality, culminating in Obergefell v. Hodges, which made marriage accessible to same-sex couples nationwide. Because so many of these precedents were set by slim majorities, however, they may be overturned if Kennedy is succeeded by a more conservative jurist.Reproductive rights are especially vulnerable.

To let voters decide

When conservative Justice Antonin Scalia died in 2016, Senate Majority Leader Mitch McConnell set out to block any nomination to replace him. “The American people should have a voice in the selection of their next Supreme Court Justice,” he said. “Therefore, this vacancy should not be filled until we have a new President.” The election was then nine months away. When Justice Kennedy announced his resignation last week, on the other hand, fewer than five months remained until an election that may reshape the Senate. Nonetheless, McConnell promised to fill his seat quickly, in what Minority Leader Chuck Schumer has called “the height of hypocrisy.”

To safeguard the rule of law

Special Counsel Robert Mueller may soon release the findings of his investigation into the 2016 election and its aftermath. This may spark a move to impeach President Trump, which could raise constitutional questions for the Supreme Court: Can a President pardon himself? Can he pardon others to protect himself? Can he ever obstruct justice? By nominating a justice while under this cloud, Trump may be naming a judge who will preside over his own case, weakening the rule of law.


For all these reasons, we believe, we must block any nomination to the Supreme Court until after the midterm election. But can we?


It won’t be easy. Republicans hold a 51-49 majority in the Senate and can approve any justice on a party-line vote. Still, there are some things we can do.

Ask our Senators to speak for us

To their credit, Senators Mark Warner and Tim Kaine of Virginia have already voiced their support for holding the court vacancy open until after the midterms. But they could take an even stronger stand by rallying their colleagues in the tradition of Senator Ted Kennedy, who gave a fiery speech against conservative Judge Robert Bork’s 1987 nomination to the Supreme Court. We might encourage them to do so with calls and letters.

Seek votes throughout the Senate

Because the GOP controls this chamber, we need the votes of every Democrat and at least two Republicans to defeat a court nomination. These will be hard to gather. Though we may contact Senators outside Virginia, they’ll likely discount our voices as we’re not their constituents. But perhaps we can ask friends and family in those states to call, write, or even march. The most promising GOP Senators to recruit for this effort include Susan Collins of Maine, Bob Corker of Tennessee, Jeff Flake and John McCain of Arizona, and Lisa Murkowski of Alaska.