As the left goes balmy over the person who will replace Justice Anthony Kennedy on the Supreme Court, there still lingers a very uncomfortable question for the folks on the left. Why did he resign now?
In his characteristic fashion, President Trump claimed that Kennedy stepped down at this time so he, as President with a Republican Senate, could appoint a replacement – as if it was a personal gesture on the part of Kennedy. The liberal media jumped on Trump for making it all about him.
There has been an underlying assumption that Kennedy would not have a favorable opinion of Trump. After all, Kennedy was a swing vote – voting against many issues Trump favored. Also, Kennedy is a very reserved and distinguished individual whose words are carefully considered.
Some media folks had even speculated that Kennedy, like Justice Ginsberg, would stay on the Court as long as possible just to prevent Trump from making the appointment. That assumption may be the reason why the resignation seemed to have come as a shock. Even though there were rumors for the past two years that Kennedy was nearing a retirement decision, the announcement caused pandemic panic on the left.
In that hyper-panic, a number of members of the anti-Trump conspiratorial left have advanced their theory that Kennedy resigned to protect his son, who worked at Deutsche Bank where Trump also did business. Though the accusations are well received in the #NeverTrump social media, Justin Kennedy was not at the bank, or even in the area of the bank, that could have involved Trump’s business. It is so bogus that even the ardent anti-Trumper, Stephanie Ruhle of MSNBC, poo-pooed the story – and she should know since she used to work at Deutsche Bank, herself. Small world.
Though Trump may have framed his explanation with an egocentric spin, he is not wrong. Kennedy is a very intelligent man. He well knew that his resignation at this time would likely result in the seating of a new justice selected by Trump and approved by a GOP Senate majority – perhaps with a little bipartisan help from a few Democrats.
Kennedy also understood that there was a chance – maybe not a good one, but a chance – that the Democrats would take control of the Senate for the next few years. That would most certainly thwart Trump's plans and promises to appoint a strict constructionist conservative to the Court. Kennedy is also well aware of the list of candidates from which Trump has promised to select his choice. With Democrat control of the Senate, Trump may well have had to look beyond his list.
So, the only conclusion that can be drawn is that Kennedy either wanted to see a conservative justice replace him, or he did not much care about preserving his legacy as a swing vote on the big social issues. The former makes more sense than the latter.
One has to remember that Kennedy is part of the conservative majority. His votes with the liberal faction -- though major in their impact on social issues -- were far and few between. He proved his conservative interpretation of the Constitution in a serious of recent decisions – upholding Trump’s travel ban, outlawing union non-member fees and siding with the confectioner in the gay wedding cake case. He had previously written the majority opinion in the Citizens United case that the left hates so much.
The left argues that by resigning now, Kennedy leaves open the possibility of having his most dramatic opinions overturned, the main one being Roe v. Wade that legalized abortion on demand. Another is the legalization of gay marriages.
Democrats are waving those cases like a red cape in front of a bull as part of a scare campaign to gain political advantage in the upcoming election. They are also making good use of them as hot fundraising issues. In reality, however, there is virtually zero chance that the Court will overturn the gay marriage decision. I would hazard a guess that if that issue were before the Court today, it would be upheld in a 9-0 decision.
As a pro-lifer, I believe that the Court, even with a new conservative justice, will not so easily overturn Roe v. Wade. Even if that were on the horizon, it would take years of litigation to arrive at the Court as a landmark case.
The fight against arbitrary abortions is currently being fought at the state level. The High Court has already ruled on a number of state laws and determined that states do have a right to “regulate” abortion services. The growing unpopularity of abortion on demand at any time in the gestation process, advances in science that demonstrate fetus viability earlier in the process and the images of torn apart babies has already resulted in a drop in the number of abortions and an acceptance of greater restrictions. Abortion on demand is not nearly as popular as it was a generation ago. In fact, those awful late-term abortions are now opposed by a majority of Americans.
It is unreasonable to believe that Kennedy does not understand all of this. Since Kennedy appears to be in reasonably good health, there is only one reason for him to step down now instead of waiting another year. Trump is right. Kennedy wanted to give the President the ability to select the new justice and a Republican Senate to advise and consent.
Larry Horist is a conservative activist with an extensive background in economics, public policy and political issues. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman, and he has served as a consultant to the White House under Presidents Nixon and Reagan. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress and lectured at Harvard University, Northwestern University, Florida Atlantic University, Knox College and Hope College. An award winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He can be reached at firstname.lastname@example.org.