Replacing Justice Kennedy
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One Justice on the Supreme Court has decided the direction of our jurisprudence for almost 50 years. From Lewis Powell in 1971 to Kennedy’s selection to replace him in 1987, this “swing vote” seat was held by two men who were confirmed by overwhelming majorities (Powell 89-1 & Kennedy 97-0) – only one negative vote between them.

Kennedy’s replacement should be someone who receives an overwhelming positive vote. Though I  disagreed with many of Justice Powell and Justice Kennedy’s opinions, there were scores of critical 5-4 decisions with which I agreed, especially on civil liberties and civil rights. . And these two men were the critical deciding vote.

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When confirming these men, the Senate understood that it was essential that if one person was going to have this power as the critical 5th swing vote that for the sake of the court and the nation the nominee not be perceived as an ideologue with an agenda but someone who would carefully consider the arguments.

The legitimacy of the Court as an institution rests on the notion that it objectively reviews the arguments in each individual case, especially on sensitive issues such as abortion, gay rights, affirmative action, civil rights, civil liberties,  immigration & privacy. While it is entirely appropriate that there are predictably liberal and predictably conservative members there must be some apparently persuadable members of the court. Too much predictability in the court is NOT a good thing.

In the current poisonous political environment two out of three of our constitutional institutions, the presidency and the congress, are suffering from public disrepute.  Public approval of the president and the Congress is dangerously low. We cannot afford to see the same thing happen to the Supreme Court. A rush to seat a predictably conservative ideologue could further weaken the court’s credibility.

What can and should the Senate do about it?

First, we have to recognize that in the absence of the filibuster for judicial nominations the future of the Supreme Court probably turns on the votes of 2-3 Democrats and 2-3 Republicans. The good news is that it’s still possible to defeat an extreme nominee without a filibuster.  That is what happened with the nomination of Judge Robert Bork in 1987. Judiciary Chairman Joe BidenJoseph (Joe) Robinette BidenRasmussen poll: Nearly three-quarters of Dems want 'fresh face' as nominee in 2020 Biden: Trump, Putin presser was 'beneath the dignity' of the presidency Biden: I’m ‘ashamed’ of Trump’s border policies MORE (D-Del.) led a debate over the nomination and the stakes of the choice, which led to Bork’s defeat by a coalition of 52 Democrats and 6 Republicans.

Today, we need at least 51 members of the Senate –Republicans and Democrats – to become a durable majority which adheres to the following propositions:

  • There is no reason for a rush to judgment before the midterms.  This decision is too important. The vote senators will cast on this nomination is as important as any they will cast during their tenure..
  • President TrumpDonald John TrumpTrump says he doesn't want to use 'adversary' to describe Russia Comey urges Americans to vote for Democrats in midterms Roby wins Alabama GOP runoff, overcoming blowback from Trump criticism MORE should select a nominee who can muster an overwhelming vote as did Powell and Kennedy.
  • To build this kind of majority these senators should insist President Trump consult with them as President Reagan did with the Kennedy choice.  The Senate should “Advise” not just “Consent” to his choice.
  • With or without consultations, the Democrats and their allies should demand the kind of comprehensive hearings Chairman Biden conducted in 1987 in the case of Robert Bork- hearings that explained in lay terms the stakes in the debate. As an oped in the LA Times explained, “an extraordinary civics lesson; it was a celebration of republican democracy at its best”.   Most Americans claimed to have watched the hearings and decided their opinion of Bork based on them. A mean spirited rush to judgment will not allow the American people and the Senate to understand what is at stake. The Democrats and a few Republican moderates need to make it clear they will not vote to approve a nominee unless he or she is in the mold of Powell or Kennedy (nominated by Republican presidents by the way): open minded; independent, balanced, with an adherence to a judicial philosophy that recognizes certain “fundamental rights” in the bill of rights, among them a right to privacy and personal autonomy.  

Minority Leader Schumer (D-N.Y.) should be prepared to use all tools at his disposal to force these consultations.

If we cannot find a nominee who has the same qualities exhibited by Powell and Kennedy: it would be better not to fill the position until we can.  

Consultations with Schumer will garner the kind of endorsement Powell and Kennedy received. The Supreme Court and the nation deserve no less.

Mark Gitenstein was Chief Counsel to the Senate Judiciary Committee during the Bork hearings in 1987.  He wrote a book on the nomination struggle Matters of Principle (Simon & Schuster, 1992).  He practices law in Washington, D.C. and served as US Ambassador to Romania (2009-12).