As many conservatives saw it, Justice Anthony Kennedy’s 1988 ascent to the nation’s highest bench was reason for only muted celebration, if any, because he settled into the seat that his nominator, President Ronald Reagan, had first tried to fill with the conservatives’ favorite jurist, Robert Bork. Bork was rejected by the Senate by a vote of 58-42, after what was up to that point the most acrimonious Supreme Court confirmation fight. This was before now-Justice Clarence Thomas was, in 1991, Borked.
Yes, this is now a verb. Merriam-Webster’s dictionary: “To attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.” For further illustration of the verb, stay tuned to what is sure to greet whomever is nominated to replace Kennedy.
Justice William Brennan, a Republican nominee whom President Dwight Eisenhower reportedly considered one of his two biggest mistakes (the other was Chief Justice Earl Warren), once said that the most important word in the court’s lexicon is — no, not “justice” or “freedom” or “equality” — “five.”
Kennedy has seemed to relish his frequent role as the decisive fifth vote in numerous important decisions, particularly two: one preserving Roe v. Wade and access to abortion as a fundamental constitutional right, the other establishing same-sex marriage as such a right. As the swing vote, Kennedy has frequently infuriated many conservatives.
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But they, or at least those of them who remember “Macbeth,” might now say that nothing in Kennedy’s career became him like the leaving it. This is so because, in his timing, Kennedy has given Republicans a great election-year gift.
It is difficult to know how reliable such polling is, but for whatever it is worth: A significant number of voters in 2016 said — perhaps they were minting a retrospective rationale for an unpleasant act — that they voted for Donald Trump because they consider the Supreme Court supremely important, and they trusted Trump more than his opponent to fill the empty seat, the one occupied by Antonin Scalia until his death in February 2016.
Let us not dwell on the obvious truth that they could trust Trump’s judgment because he promised not to exercise it: He promised that he would choose Scalia’s replacement from a list provided by people who have actually thought about such matters — principally, the conservative lawyers of the Federalist Society. The quality of Trump’s thinking about matters juridical can be gauged by his remark, during a Republican candidates debate, that his sister, a federal judge, was so conservative she had signed a “bill” that Justice Samuel Alito had signed.
The Scalia seat was open because something at issue in 2018 — Republican control of the Senate — enabled Majority Leader Mitch McConnell to prevent consideration of President Barack Obama’s nomination of a replacement, Merrick Garland. It is arguable, indeed plausible, that Trump would not have won if Scalia had not died.
And it is likely that Kennedy’s retirement, by focusing attention on the Supreme Court and hence on the Senate, will redound to the benefit of Republicans this autumn. Religious conservatives will consider this providential and will, for perhaps the first time, thank God for Kennedy.