- - Wednesday, June 27, 2018


Justice Anthony Kennedy finally announced his long-awaited and highly anticipated exit from the U.S. Supreme Court on Wednesday, enabling President Trump to appoint a steady conservative successor. The High Court is stuck, like a needle on an old phonograph record, with a succession of 5 to 4 decisions reflecting the deep and unbridgeable division of the nine justices.

Mr. Kennedy came to the court as a conservative, but he came to relish more his reputation as a judge who couldn’t quite make up his mind exactly who he was, surrounded by justices on his right and his left who know exactly who they are. Mr. Kennedy was blown about by whatever wind that blows.

President Trump promised late Wednesday to fix that. He repeated his promise to appoint Supreme Court justices who will uphold the Constitution as it is, not as what they wish it were. He said he would choose once more from the list of “originalists,” put together by constitutional scholars, where he found the name of Neil Gorsuch, whom he nominated two years ago and who appears to be living up to his billing.

If history repeats, the Supreme Court will be dominated by five authentic conservatives who respect the Constitution that James Madison and the founding fathers bequeathed to the new nation, and which has been the lodestar of the union since.

Getting out while the getting is good is Anthony Kennedy’s parting gift to Mr. Trump, who has the opportunity to shape the court for a generation. Though Justice Stephen Breyer, 80 next month, and Ruth Bader Ginsburg, 82, the court’s most stalwart liberals, seem determined to outlast President Trump’s ability to appoint their replacements, most justices look for earlier exits. The lasting legacy of Donald Trump may well be the clear and decisive philosophical realignment of the entire American judicial system.

But first there’s the politics, and Mr. Trump must surmount obstacles sure to be constructed in the way. With the three-quarter vote now set aside, a simple majority of senators can confirm the presidential choice, and with a majority of one Sen. Mitch McConnell, the majority leader, must make sure that he corrals every Republican vote. Sen. Chuck Schumer, the leader of the 48 senators of the Democratic minority, warned Mr. Trump only hours after Mr. Kennedy’s retirement announcement that he must not nominate anyone who is not a confirmed protector of abortion rights. Other voices warn that only someone of Mr. Kennedy’s compliant legal philosophy will do. They have forgotten that they lost the 2016 election with a deeply flawed candidate, and that elections have consequences.

The opportunity to remake the Supreme and lower courts was the single issue that drove conservatives to vote for Mr. Trump when many of them shared Democratic misgivings about Mr. Trump’s reputation and character. These conservatives were all but unanimously pleased by the president’s selection of Neil Gorsuch, and the possibility that the president will choose wisely again will drive Republican enthusiasm again. This could be the needed “intensity factor” needed to redeem expectations that the party will retain control of the Senate and perhaps add to the originalist margin.

Now the guessing begins about who the president may choose. He vows no unpleasant surprises. The handicapping has begun, but the science of projecting winners in the Supreme Court Derby always produces mixed results, no more (and maybe less) accurate than picking winners in the Kentucky Derby. Playing the game is nevertheless irresistible in Washington.

Some early names include Thomas Hardiman, 52, of the Third U.S. Court Court of Appeals in Philadelphia, who was the president’s second choice when he picked Neil Gorsuch; Brett Kavanaugh, 53, of the U.S. District Court of Appeals for the District of Columbia, second in influence to the Supreme Court; Amy Coney Barrett, 46, of the Seventh U.S. Court of Appeals in Chicago, and Thomas Lee, 53, of the Utah State Supreme Court.

Only the president knows whom he wants, and his preference is the only one that counts. What he doesn’t want is another Anthony Kennedy, whose squishy sentimentality overwhelmed his reverence for the Constitution when he struck down state bans on same-sex marriage, so called, and found in the Constitution a right for men to marry men, women to marry women.

“No union is more profound than marriage,” he wrote then, casting the decisive fifth vote, “for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.” Those who want to marry someone of his or her own sex, he wrote, must not be condemned to live in loneliness, excluded from one of the civilization’s oldest institutions. No one but Mr. Justice Kennedy had ever before thought to look in the Constitution for such sob-sister sentiment in pursuit of understanding the law.

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