After joining the majority on a raft of right-wing decisions aimed at crippling organized labor, abortion access, antitrust regulation, and other longtime targets of the conservative movement, Justice Anthony Kennedy finally retired from the Supreme Court. Great!
Under normal circumstances, losing a “swing voter” Supreme Court justice while Republicans held the White House and Congress would be terrible news, because they would replace that justice with a solidly conservative one, ensuring a conservative majority on the court for years to come. Thankfully, our circumstances are not normal.
And Kennedy showed, at the end, that he was done swinging. He came down firmly as a conservative, and timed his departure from the court to maximize the chances that a Republican government would replace him before voters had a chance to weigh in. This means that, as of today, the Supreme Court has a 5-4 conservative majority. But as of August 1, it is a 4-4 draw. That is an improvement on the status quo, and it is one that should be maintained as long as possible by just about any means necessary.
In the recent past, it would have seemed absurd to allow the Supreme Court to operate at eight members. But they have already shown they can do it, when they weathered the long period between Anthony Scalia’s death and the confirmation of Neil Gorsuch to replace him. Indeed, the court functioned well enough that multiple Republicans decided, in advance of the 2016 election, that they were fine with it remaining an eight-member body indefinitely. Senators Burr, Cruz, and even John McCain promised to do whatever they could to keep a seat open throughout the entirety of Hillary Clinton’s first term. There is your precedent and your justification. This Is Normal.
Indeed, it would seem quite abnormal to allow this president and this Congress to fill this vacancy. The president was elected without a popular majority and with the support—whether actively solicited or not—of foreign intelligence agencies looking to undermine public trust in the legitimacy of our elections. His campaign is currently under investigation for criminal activity, by a special counsel who has already filed charges against senior members of the president’s campaign team. It seems to me that there’s no good reason to allow an illegitimate president to make one lifetime Supreme Court pick, let alone two. Indeed, Watergate shows exactly how important it is to have an independent court while the executive branch is under criminal investigation—does anyone imagine it would have been legitimate if Richard Nixon, while under active investigation, had appointed justices who decided in his favor in United States v. Nixon? (That case was decided, by the way, unanimously: 8-0. Justice Rehnquist recused.)
Brett Kavanaugh, a federal judge known to be high on Trump’s shortlist of potential nominees, doesn’t appear to believe a president can be indicted. Most of the time, that is a purely academic debate; it is currently a much more relevant one. How irresponsible it would be to confirm someone who has already prejudged the issue, especially when the court has no particular need for a ninth member!
And if there is no need for a ninth member, and if President Trump is not qualified to appoint one anyway, the way forward is clear: Deny quorum until everyone accepts the eight justice status quo. Senate moderates in both parties, including pro-choice Republicans Susan Collins and Lisa Murkowski, should be thrilled with an evenly balanced Supreme Court, with the four conservatives and four liberals being forced to find common ground, and persuade one another, instead of deciding things on nakedly partisan grounds. Anthony Kennedy has given centrists, and all who regret the incivility of the current moment, a gift, and it would be irresponsible to waste it by replacing him.