Justice Kennedy Was Not Good, Mayor Pete. He Was Not Good.
Say it ain't so, Pete.
In an interview with Cosmo this week, Mayor Pete Buttigieg decided to talk about his plans for the Supreme Court by ... praising former Supreme Court Justice and lifelong Republican Anthony Kennedy, who stepped down so Donald Trump could put Brett Kavanaugh on the Court.
So I've floated several ideas and deliberately kept some level of open-mindedness about which ones are going to work best. One of them would be to have 15 members, but 5 of them can only be seated if the other 10 unanimously agree. The idea here is you get more justices who think for themselves. Justices like Justice Kennedy or Justice Souter, and there are many legal scholars who think this could be done without a constitutional amendment under current law.
Where to start?
Anthony Kennedy is a lifelong Republican. He was appointed to the Ninth Circuit by Gerald Ford and to the Supreme Court by Ronald Reagan. Reagan nominated Kennedy after famously getting Borked when he tried to put Nixon Solicitor General Robert Bork and then Douglas Ginsburg on the bench. While he occasionally broke with his buddies over on the right wing of the Court, he was generally a reliable conservative vote. As Jessica Mason Pieklo put it over at Rewire, "there are few myths as persistent as the myth of Justice Anthony Kennedy as an independently minded justice and the Supreme Court as a nonpolitical institution[.]"
In one of his last acts on the Supreme Court, Justice Kennedy was the deciding vote upholding Trump's Muslim ban. He wrote a concurrence that began, "I join the Court's opinion in full." Kennedy literally wrote Citizens United. He voted to strike down handgun bans in Washington, DC and Chicago. He routinely gave the green light to corporations to pollute our water, air, and land. He okayed Christian prayers at town council meetings. He helped make George W. Bush President in Bush v. Gore. Kennedy voted that the federal government could criminalize medical marijuana even in states where it was legal -- in fact, he rarely saw a drug law he didn't approve of. He helped gut labor unions. He wrote the opinion upholding a federal ban on certain late-term abortions. Justice Kennedy voted to destroy the Voting Rights Act and uphold voter suppression.
That is not my idea of someone who Democrats should be putting on the highest court in the land.
Yes, Justice Kennedy was good on LGBTQ rights. The Obergefell opinion is beautifully written. I have friends who have had excerpts of it read at their weddings. As a bisexual woman (and civil rights lawyer), it was an incredibly important case for me. I will never forget the day marriage equality became the law of the land.
But if Justice Kennedy really cared about LGBTQ people or women, he wouldn't have cut a deal with Donald Trump to retire and put Kegs Kavanaugh on the Supreme Court. Kennedy waited through the 8 years of the Obama presidency to allow a Republican to appoint his replacement -- and not just any Republican, Donald fucking Trump. As it was put by Rewire,
[N]othing left LGBTQ people and Kennedy's own legacy more at risk than his decision last summer to retire. Unless Kennedy was living under a rock, he knew the Trump administration had the rights of LGBTQ people teed up for rollback and that anyone named to replace him would be a reliably anti-LGBTQ vote. Despite campaign promises to the contrary, President Trump has shown his administration is not at all interested in affirming the "dignity" of LGBTQ people that Kennedy's Obergefell decision praised. So when it came to choosing between the lives of LGBTQ people and the peace of mind of knowing a Republican would name his replacement, Kennedy chose the latter.
The 2020 Supreme Court term will see decisions about whether LGBTQ people are protected by federal civil rights laws and whether Louisiana can put absolutely bullshit restrictions on abortion access.
Pete's plan also fails to account for the damage that has already been done to the federal judiciary by Donald Trump and Mitch McConnell. Over 150 Trump appointees have already been put on the federal bench -- that's nearly a quarter of all federal judges. In addition to being unqualified and evil, a lot of them are very young. They will do damage to the country for decades to come. Unless drastic action is taken, I don't see this being fixed within my lifetime.
With all of this in mind, I do want to point out that Pete changed his tune after getting a LOT of backlash from Democratic court watchers.
To Buttigieg's credit, his campaign quickly reached out to Rewire.News to clarify the comments in Cosmopolitan. A spokesperson directed me to comments Buttigieg made at a campaign stop yesterday in New Hampshire where he identified Justice Ruth Bader Ginsburg as the kind of justice he'd nominate should he be elected president. He also released a policy plan this week designed to build power for women, and it includes using support for reproductive rights as a litmus test for future judicial nominees.
So that's good. But we also need to stop the fetishization of Justice Kennedy as "independent" or the idea of someone a Democrat should ever be nominating.
There are three incredible women on the Court who Democratic candidates like Pete can look to for inspiration. Give me another RBG, Elena Kagan, or Sonia Sotomayor any day.
Hopefully now, Mayor Pete will remember that he's running in the DEMOCRATIC primary?
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