Justice Anthony Kennedy’s inconvenient retirement

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Supreme Court Justice Anthony Kennedy
Supreme Court Justice Anthony Kennedy
In addition to Kavanaugh, here is a list of possible replacements

Supreme Court Justice Anthony Kennedy announced his retirement on June 27, 2018. It will be effective in a few days on July 31, 2018.  President Ronald Reagan appointed the conservative Kennedy to the United States’ highest court in 1988. Despite being conservative, Kennedy was a swing vote on several pivotal decisions, most notably upholding Roe v. Wade, and making same-sex marriage legal in all 50 states.

With Kennedy’s retirement, it leaves open an opportunity for Donald Trump to appoint another conservative Supreme Court Justice, something he has vowed to do. Trump had already appointed Neil Gorsuch after the Republican-led Senate changed its rules to not confirm a Justice in an election year. That move in the wake of Antonin Scalia’s death effectively blocked President Barack Obama’s pick, Merrick Garland. It cleared an easy path for a conservative judge such as Gorsuch. Ironically, it was a similar situation when Kennedy was appointed, with 1988 being an election year and the Senate controlled by the Democrats.

What does Kennedy’s retirement mean? Though Kennedy was a conservative, he tended to be more moderate, being the swing vote for the Supreme Court. He was a proponent of LGBT civil rights. He was the key vote in the landmark 2015 decision legalizing same-sex marriage at a federal level. He wrote the court’s opinion on the decision, stating: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Trump has made it no secret that he favors hard leaning conservatives, pandering to the religious right and the agenda of Mike Pence, who is staunchly anti-LGBT. Trump also plays to his own ego and visions of grandeur. His drive continues to have things look pretty and have historical significance. There is a list Trump began compiling of court nominees in 2016 when he was getting ready to name Scalia’s successor.

“I think you see the kind of quality that we’re looking at when you look at that list,” Trump said last month. That was on the day of Kennedy’s announcement. “So it will be somebody from that list.”

Trump wasn’t forthcoming with much more information than that. He left plenty of speculation to run rampant. Six were considered as the early front-runners, including two women, out of a list of 25.

Who is on the short list for the Supreme Court?

Here is information on the other five that were on the list before Donald Trumps selection of Judge Kavanaugh. These folks are considered much worse than Kavanaugh.

Most problematic for LGBT rights would be Joan L. Larsen, currently serving on the U.S. Court of Appeals for the Sixth Circuit. She was appointed to that position last year by Trump and once clerked for Scalia. During her confirmation process, 27 LGBT rights groups protested her appointment. Despite a joint letter from the groups detailing Larsen’s questionable record on LGBT rights, she was confirmed by a vote of 60-38 in the Senate, with eight Democrats siding with Republicans.

The letter pointed out Larsen’s decision to deny a lesbian visitation rights to her children. In part, the letter said: “After reviewing the records of Justice Larsen, we have concluded that her views on civil rights issues are fundamentally at odds with the notion that LGBT people are entitled to equality, liberty, justice and dignity under the law. We wish to call to your attention aspects of their records that illustrate why these nominees pose a grave threat to the communities that our organizations serve. First and foremost, we continue to have serious concerns about Justice Larsen’s willingness to comply fully with the U.S. Supreme Court’s ruling in Obergefell v. Hodges. In 2016, when Justice Larsen was serving on the Michigan Supreme Court, she refused to review an appellate court’s decision in Mabry v. Mabry. That decision concerned whether a lesbian parent, who did not have custody of her child and had separated from her partner of 15 years, could obtain parental rights under Michigan’s equitable-parentage doctrine, which applies to married couples. After Obergefell was decided, the non-biological parent filed a complaint for custody and parenting time pursuant to this common law doctrine.

“However, the appellate court found lack of standing for the non-biological parent to seek custody, even though during the entire period of their relationship, Michigan unconstitutionally prohibited same-sex couples from marrying and barred second-parent adoption between unmarried couples. Justice Larsen’s wholesale rejection of this appeal is particularly troubling given that the children of same-sex couples and their constitutional rights were central to the Supreme Court’s analysis in Obergefell.”

In 2004, Larsen penned an article criticized the Supreme Court’s decision in Lawrence v. Texas, which struck down as unconstitutional Texas state laws that made same-sex intimate contact a criminal offense. In 2012, she refused comment on a speech she made to a chapter of the Federalist Society in which she was critical of the Obama Justice Department’s refusal to defend ‘Defense of Marriage Act’ in court.

Another problematic possibility on the early list is William H. Pryor, Jr., currently serving on the U.S. Court of Appeals for the 11th Circuit. Pryor has called Roe v. Wade, the 1973 Supreme Court decision that established women’s constitutional right to an abortion as “the worst abomination of constitutional law in our history.” He is a staunch conservative and close to Attorney General Jeff Sessions, with both men strongly opposing gay rights. He believes gay people shouldn’t be protected by the Constitution and should be prosecuted for having sex.

In 2003, while serving as Alabama’s Attorney General, he also penned a piece about Lawrence v. Texas, defending the sodomy law. At the time, he compared same-sex relations to “polygamy, incest, pedophilia, prostitution, and adultery”, adding that the Alabama court had “never recognized a fundamental right to engage in sexual activity outside of monogamous heterosexual marriage, let alone to engage in homosexual sodomy. Such a right would be antithetical to the ‘traditional relation of the family’ that is as old and as fundamental as our entire civilization. Texas is hardly alone in concluding that homosexual sodomy may have severe physical, emotional, psychological, and spiritual consequences, which do not necessarily attend heterosexual sodomy, and from which Texas’s citizens need to be protected. Homosexual sodomy has not historically been recognized in this country as a right; to the contrary, it has historically been recognized as a wrong. It is not a fundamental right.” He went on to say that sodomy between heterosexual partners was acceptable because it wasn’t as bad as gay sex. Lambda Legal has called Pryor “the most demonstrably anti-gay judicial nominee in recent memory”.

Charles Canady, a Florida Supreme Court justice and former congressman, has long opposed marriage equality. In 1996, courts in Hawaii were considering a marriage equality case while Congress considered the Defense of Marriage Act. Canady said, “Should we let three judges in Hawaii decide to redefine marriage, not only for the people of Hawaii, but for the rest of the country as well? I really can’t imagine how anyone could, in good conscience, oppose the proposition that the states should be able to deny the status of marriage to same-sex unions.”

Amy Coney Barrett serves on the U.S. Court of Appeals for the Seventh Circuit, having been confirmed last year after being questioned if she could subordinate her Catholic faith to the law. In 1998, Barrett, then a law student, co-authored a paper on judges’ beliefs sometimes conflict with the law and said that Catholic judges might want to recuse themselves from certain cases. A former law professor at Notre Dame University, Barrett has said, “the Constitution does not expressly protect a right to privacy”, a statement that has implications for abortion and LGBT rights.

Timothy Tymkovich, chief judge of the U.S. Court of Appeals for the Tenth Circuit, defended Colorado’s antigay Amendment 2 before the Supreme Court as the state’s solicitor general. The high court, with Kennedy writing for the majority, struck down the measure, which prohibited any cities or counties within Colorado from banning antigay discrimination. On the appeals court, Tymkovich wrote for the majority in the Hobby Lobby case, stating that employers did have the right to deny employee insurance coverage for certain types of contraception methods.

What is next? 

Meanwhile, Senate majority leader Mitch McConell has called on his fellow Republicans to make sure Trump’s nominee be “considered fairly”. He supports Kavanaugh. However, McConnell was the one who spearheaded the effort to block Obama’s selection two years ago. He delayed Garland’s nomination and delayed it until Donald Trump was elected, saying, “We will vote to confirm Justice Kennedy’s successor this fall.”

Democratic leader Chuck Schumer of New York has pushed back. Even before the selection of Kavanaugh he was demanding that the Senate wait to confirm Kennedy’s successor until after the midterm elections. He said they should not “consider a Supreme Court justice in an election year. Anything but that would be the absolute height of hypocrisy.”