There MAY be hope for our moribund democracy after all:
“
This week, Justice Kennedy finished hiring his full complement of four law clerks for October Term 2018. Wow!
The AMK hires for 2018-2019 are as follows:
1. Aimee Brown (Chicago 2014 / Griffith)
2. Alex Kazam (Yale 2016 / Kethledge / Sullivan (S.D.N.Y.))
3. Clayton Kozinski (Yale 2017 / Kavanaugh)
4. Conrad Scott (Yale 2015 / Watford / Garaufis (E.D.N.Y.))
...
But still, the news of these AMK hires is notable. It doesn’t guarantee that Justice Kennedy is staying past the current Term, but it certainly suggests that he’s open to the possibility. And considering how confidently people have been talking about AMK’s very imminent retirement, even the slightest indication that he might be sticking around for longer is very newsworthy.
Why is this a positive omen? Because active Supreme Court justices get four clerks. Retired justices, only one. When spring 2010 rolled around and John Paul Stevens had hired only one law clerk, people knew what was coming. (And if Kennedy did retire, one of his four hires would probably still clerk for him, while the other three would go to other justices.) Kennedy hiring four clerks means there’s a decent chance he’ll remain on SCOTUS past the current term. Not certain, but better than people have assumed. Which would be about the best news American democracy can hope for—as long as he sticks around, there is a chance that SCOTUS won’t simply rubber stamp what Trump wants.
As we know, Trump demands the absolute loyalty of everyone he appoints—and as the Washington Post reported, he considered withdrawing the Gorsuch nomination over Gorsuch saying it was “disheartening” that Trump attacked the judiciary, believing it was a sign that Gorsuch might not be “loyal.” Pretty much confirms what anyone who pays attention might have suspected—Trump chose Gorsuch because he believed Gorsuch would be loyal to him, and Gorsuch probably gave Trump such a promise. And indeed, Gorsuch has proven himself quite loyal to Trump over his first few months—speaking at the Trump Hotel, writing a fawning letter to him, and voting for the Trump position every chance he gets. Gorsuch has voted for the Muslim ban, wrote a dissent in Pavan v Smith to pave the way for repeal of marriage equality, and advocated a preposterous legal theory to kill off all anti-discrimination law—just as bad, if not worse, than the religious freedom argument. Plus, Gorsuch’s own history suggests he is every bit as bigoted and evil as the Donald—but unlike the Donald, he possesses impulse control, intellect, and life tenure—which make him far more dangerous to democracy.
If Kennedy leaves, two things are true:
1. Trump will nominate a Trump loyalist, like Gorsuch. Or maybe Brent Talley. Or Roy Moore.
2. All Senate Republicans will vote for the nomination.
And then Trump would have ironclad control over the Constitution and the law for generations. He would have four true believers devoted to his fascist cause, and a fifth, John Roberts, who’s more than happy to enable it—think of Roberts as a Bob Corker or Jeff Flake or John McCain, someone who talks a good game but always votes the party line. The only options for Democrats would be to pack the court or accept fascist rule—and Democrats, with their pathological obsession with bipartisanship (cough Ralph Northam cough) would surely choose the latter.
The fact that Kennedy has hired four clerks for next term is as good an indicator as any that American democracy will be spared this fate at least for another year. So despite the passage of the #GOPTaxScam, the week ends on a high note. Remember, a law can be repealed by another law (though as currently constituted, the Democratic Party is too weak and bipartisan to do so---and depends on many of the same rich donors as the GOP). A SCOTUS decision can’t be. If I had a choice between the tax scam failing or Anthony Kennedy not retiring, I’d choose the latter.
So, glad you’re likely staying, Justice Kennedy. Please don’t forget to rule for democracy and equality in Whitford and Masterpiece Cakeshop.
Oh, and Chuck Schumer—should you be fortunate enough to become Majority Leader in 2019, and a SCOTUS vacancy arises, you must not act “responsible” and “bipartisan” on this issue. Stand up to the fascist bullies and fight as vicious and dirty as they do. It’s beyond obvious that nobody gives a shit about procedural norms. And no fucking way should a bipartisan accommodationist like Patrick Leahy or Dianne Feinstein be allowed to be the top Democrat on the Judiciary Committee. (How did negotiating with fascists work out for Neville Chamberlain? How did fighting them work out for Winston Churchill?)
Still, it just became more likely that we’ll get to have this discussion under Majority Leader Schumer rather than McConnell. Which would be something to celebrate this holiday season in a year where we haven’t had a whole lot to celebrate. We may yet make it through. Hold the fort, Justice Kennedy. America (and history) will thank you.
And on that note—hope everyone has a great holiday. We all could use (and we deserve) one, before we set about doing what is required (quoting Churchill, and referring to ousting the GOP majorities in the House and Senate).
(More a hope there than a prediction.)
(My favorite version of this tune.)