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Monday, March 26, 2018

A Supreme Court Crisis: The Momentous Retirement of Justice Anthony Kennedy

Justice Anthony Kennedy

There are rumors that Justice Anthony Kennedy will retire this summer from the United States Supreme Court, where he has served since 1987, as soon at the current term ends in June.  That would be a catastrophe for liberals and a triumph for conservatives, a condition that would likely last for decades.  Donald Trump would certainly appoint a very conservative Justice to replace him, and all future decisions would be right-leaning in the extreme.

[Front: Ginsberg, Kennedy, Roberts, Thomas, Breyer, back Kagan, Alito, Sotomayer, Gorsuch] 

I’ve often blogged (see below) about how Justice Anthony Kennedy is the most important judge in the entire world because he sits on the highest court in the most important country, and on that court there are four confirmed liberals (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, Sonia Sotomayer) and four confirmed conservatives (Chief Justice John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch).  Kennedy himself is the swing vote in almost all the cases where these two forces will disagree, sometimes siding with the liberals (gay marriage) and sometimes with the conservatives (Hobby Lobby can have religious views even though it is a corporation, and Citizens United, also a corporation, is a person with the first amendment right of free speech, allowing it to flood the country with money for political advertising and have a Godzilla effect on elections).

He is old (and I get to say that since I turn 75 this year and can claim to be old myself).  Old judges retire, and when Kennedy goes, so goes the nation.  Timing is important, as explained below.

Anthony McLeod Kennedy was born on July 23, 1936, making him 82 this summer.  The work on the Court is hard, important, demanding, and there must be days when he longs for calm days stretched out on a hammock, or playing with his grandchildren, or having fun with the woman he’s been married to since 1963.  If you watch an interview with him, or better yet a CNN long discussion, you’ll discover he is a soft-spoken, keenly intelligent man, with a twinkle in his eye, and a delightful sense of humor.  [For a wonderful interview with him at Harvard Law School in 2015, where, damn it, he looks younger than I do, see] 

The Court’s term runs from the first of October until the end of June, and therefore early July is the traditional time when a Justice announces that he/she wants to retire, thus giving the president sufficient time to choose a successor and put this person on the Court by the start of the new term.  There have been rumors for years that Kennedy might retire, but so might two of the liberals: Ruth Bader Ginsburg (85) and Steven Breyer (80 this August).  Of course the liberals should have retired during Obama’s terms if they wanted liberals to replace them, but, alas, they didn’t.  Ruth is particularly guilty for letting that opportunity slip away (because she’s had health problems and is the older of the two), though Mitch McConnell and friends might still have held up her replacement for years rather than let Obama fill her slot with another liberal.

Kennedy, with Ginsberg (asleep at State
of the Union Address)

This is a crucial moment for the Court.  If Justice Kennedy elects to retire this summer, President Trump will nominate, and the Senate likely confirm, a Justice who will keep the Court on a completely predictable course, 5 to 4 decision after 5 to 4 decision, that advance a purely conservative result for decades to come. 

But if Kennedy elects to remain on the Court for one more year at least, things are very different.  The 2018 election could well give the Democrats control of the Senate.  In that case Trump could not get approved a Justice whose views were far right, and would have to settle for nominating a moderate.  That would keep the Court politically right where it is now: balanced.

Justice Kennedy has already hired judicial clerks for the coming fall term.  That’s a sign that he’ll stay on, but in the past it has not prevented retirements, with the hired clerks typically then working for the replacement Justice.  One thing in favor of Kennedy’s retirement is that he was appointed by a Republican president (Reagan) and might want to make sure his replacement is chosen by a Republican president.  Of course that assumes he is pleased with the choices that Trump has already announced are on his judicial list, meaning someone who would be yet another Neil Gorsuch (who has consistently voted for the most conservative positions possible since Trump elevated him to the Court).  Kennedy might favor a result that leads to someone more like himself sitting in the chair he vacates.  And if Kennedy retires he gives up one of the most powerful positions on the planet and becomes a footnote in history.  It must be hard to give up power that heady.

Should one of the liberals (Ginsburg, Breyer, Kagan, Sotomayer) die or leave the Court for any reason during this Republican presidency, chances are good that a very conservative Court would be controlling results for many, many years thereafter.

[Click to englarge]

So, as I said at the start, if you are a conservative things are looking good for a Supreme Court that will be very much to your liking.  If you are a liberal or favor a Court that is more balanced in its approach to the controversial cases that will come before it, then hope that Anthony Kennedy holds off his retirement for at least another year, and watch carefully the health of the liberal members sitting precariously on their side of the bench.


Related Posts:

Obamacare, John Roberts and the Supreme Court.” July 3, 2012;

"Five Judges Have Stopped All Further Progress on Gay Civil Rights Legislation," August 18, 2014;

“Must a Baker Create a Cake for a Gay Wedding?  What Will the Supreme Court Likely Say?” September 28, 2017;

Monday, March 19, 2018

A Criminal Controls the Detective: Why Trump Will Soon Fire Robert Mueller

Investigators who have worked under Robert Mueller in the past say he always has the same investigative tactic: start around the edges and work towards the middle, picking off the easy prey at first, getting their cooperation by giving up others, moving slowly and steadily towards the main target, never forgetting that the money trail is hard to hide and a magnificent source of unhideable treasures when finally revealed for all the world to see.  This is exactly what Mueller has been doing for many months, and its scope is both broadening (not just Russia, but corruption in the Trump campaign, plus Trump financial dealings made off that campaign) and narrowing now as it hones in on Donald John Trump himself.  At Mueller’s side is an all-star legal team, experts in unearthing deeply buried secrets, dedicated to the truth.

When the investigation first started I didn’t think much would come of it.  It seemed to me that at most it would uncover piddling stuff, with some embarrassments perhaps for Trump and crew, but nothing major, nothing criminal, nothing worthy of, say, impeachment.

I’m beginning to think I was wrong.  All of those things are suddenly looming possibilities, now very real.  I am becoming sure that there are big things to find, things Donald Trump himself doesn’t want to thinks about: much actual documentable collusion with the Russians perhaps,  money dealings with promises made to whomever, false feeds to evil persons about Hillary, and perhaps even photos of that pissing game in Moscow that may or may not have happened.  Hmm. 

Here’s why I think all this is about to explode:

Trump’s behavior (always hard to explain unless you are a Kindergarten teacher who is constantly dealing with five year olds) has pointed us the way to his own guilt.  If there were nothing big to hide he wouldn’t keep making noisier and noisier stinks about it.  But every day it gets worse, and his nightly tweets now sound like the yapping of a particularly pissed off chihuahua.  It’s clear that aides, fearing a political catastrophe, have had to talk him out of firing the special counsel in the past when he was aching, aching to do so.  They just think he’s being, well, crazy.  I think he’s being, well, guilty and panicked. 

The Donald’s pissed all right, and the reason he’s so frantic is that he knows what the coming bad headlines will say, though the rest of us will have to wait for Mueller to reveal all before we hear the details.  When these revelations start leading on the evening news, the internet, and when indictments are filed in federal court, the Trumpster is right to worry they’ll quickly lead to (1) disgrace, (2) impeachment or resignation, (3) and/or prison.

Oh, but Our President can avoid all of this!!!  Just fire Mueller, claiming he’s a lackey of the Democrats who’s involved in a major witch hunt.  Refuse to allow further investigations.  Surely that will work!  He’s the President, by God!  And here’s what makes it all the more likely: Trump’s past life has been just like this!  Yes, he routinely has gotten himself into major trouble, even criminal trouble, but, with a payoff here and there, and some fancy maneuvers, he escapes more or less whole even if other enterprises (discrimination in housing in New York, casinos going bankrupt in Atlantic City, bad investments here and there, regular stiffing of people to whom he owes money, the bringing of endless baseless lawsuits, a major fraud with creating Trump University by taking the money of people who loved him—see below) crash and burn while he walks away, things collapsing in the background, and becomes a TV star.  Our President.  Donald Trump always comes out on top, and never mind the collateral damage.

Would it work out okay?  One more time?  Well, Trump hugely hopes so, but . . . well, he lives in a dream world as we all know.  Real life will be less friendly.  One of the major reasons Nixon resigned resulted from his firing of a lawyer investigating Watergate.  Almost no one supports the criminal dismissing the cop, and while the post-Mueller firing process will be longer and messier than a complete investigation by Mueller, it will likely end the same.

Maybe that’s enough for Trump.  Instead of being thrown out, say, later this year, he’ll make it to the next before he goes, possibly negotiating a deal that avoids jail at all.  That result would be worse for the country but perhaps better for Trump himself.

Asked to choose between those two (America, Trump) which do you think DJT will pick?

So, readers, that’s why I now predict Trump will fire Mueller soon.  I’d better hurry and post this or it will be old news.

Related Posts:

“Comparing Donald Trump to a Badly Infected Big Toe,” August 3, 2016,

“Trump University: A Fraudster for President”? March 10, 2016;

“President Preposterous: Donald Takes the Helm,” November 14, 2016;

“Calm Yourself: What Trump Can and Cannot Do About LGBT Rights,” November 16, 2016;

“Careful What You Wish For: Making Trump an Illegitimate President,” January 20, 2017;

“Fake News You Might Like to Read,” February 17, 2017;

Embracing Michael Pence’s Coming Presidency,” February 28, 2017;

“Is Trump Clinically Insane?  The Goldwater Rule Revisited,” June 29, 2017;

“Impeaching Donald Trump:  A Lawyer Looks at the Legal Issues,” August 16, 2017;

“Chaos in the Country: Eight Months of Trump’s Presidency”  August 28, 2017;