Will Trump get his Bork on the Supreme Court?

Justice Anthony Kennedy’s sense of humor is as quirky as his jurisprudence. He likes to start public lectures with a reference to the frustrations of modern travel: “My wife and I recently returned from Europe and, when we went to the baggage claim, our luggage was missing. When I reported the loss to the airline agent, he asked, ‘Has your flight arrived?’ ‘No,’ I replied, ‘I am a mere shadow of my existential self!’” He certainly cast a broad shadow over the U.S. Supreme Court and its decisions during his three decades on the bench.

Because he often positioned himself at the fulcrum between the court’s liberal and conservative wings, the 81-year-old jurist will leave the nation’s highest tribunal at the end of this month as he arrived there in 1988 — surrounded by controversy over filling its so-called swing seat.  

{mosads}Kennedy was marking 12 years on the Ninth Circuit Court of Appeals when Justice Lewis F. Powell Jr. unexpectedly announced his retirement from the Supreme Court in June 1987. The courtly Virginia gentleman had played a pivotal role as the tie-breaking vote in cases determining the court’s interpretation of constitutional law on abortion, affirmative action and religion.

President Reagan and his advisers badly misjudged the impact of swing seat politics on the appointment process when they nominated Judge Robert Bork of the U.S. Court of Appeals for the District of Columbia to fill Powell’s crucial seat. Unquestionably qualified by virtue of his intellect, education and experience, Bork was stridently conservative in his long paper trail of judicial opinions and scholarship.

Democrats controlled the Senate after the 1986 midterms, and Sen. Edward Kennedy (D-Mass.) took the lead in opposing Bork. He knew that not a day could be wasted in letting the White House and its nominee seize the narrative. On the Senate floor, Kennedy blasted the nomination on grounds that Bork would take the country backward in civil rights and liberties.

Hearings before the Senate Judiciary Committee were a bloodbath. Bork’s commitment to the original intent of the Founding Fathers appeared rigid and was fair game for portrayal as beyond the mainstream of contemporary judicial philosophy. Down he went to defeat, 42-58.

Enter Anthony Kennedy, described in the 1987 Almanac of the Federal Judiciary as “courteous, stern on the bench, somewhat conservative, bright, well-prepared, filled with nervous energy, asks many questions, good analytical mind, not afraid to break new ground, open minded, good business lawyer, hard to peg, an enigma, tends to agonize over opinions.”  In a Democrat-controlled Senate, he was just the sort of candidate who could win confirmation — and did, by an astounding 97-0 vote.

Kennedy had told the Judiciary Committee, “It’s somewhat difficult for me to offer myself as someone with a complete cosmology of the Constitution. I do not have an overarching theory …  of interpretation. … I think if a judge decides a case because he or she is committed to a result, that it destroys confidence in the legal system.” This was his guiding principle on the Supreme Court, and why his retirement is so consequential.

When he voted to allow flag burning as symbolic speech protected under the First Amendment, Kennedy agonized, “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.” His determinative votes to preserve access to abortion, allow affirmative action in university admissions, ban the use of the death penalty for juveniles and, most historically, create rights to marriage equality and sexual privacy became counterweights to his more conservative decisions in many race, religion, criminal rights and federalism cases.  

It was the Bork debacle for Republicans that prompted George H.W. Bush to name a stealth nominee, David Souter, to replace William Brennan in 1990. A former New Hampshire Supreme Court nominee who had decided few cases with national implications, served as a federal judge for less than a year, and written virtually no revealing articles seemed to be the ideal nominee in the post-Bork era. He went on to disappoint conservatives with his record that was more Brennan than Bork in nature.

When George W. Bush considered Attorney General Alberto Gonzales for Sandra Day O’Connor’s seat, conservatives complained that “Gonzales,” thought to be a potential liberal vote, was “Spanish for ‘Souter.’”  

Trump has characteristically upended precedent in Supreme Court appointments, relying on interest groups to provide lists of candidates during the 2016 campaign, considering judges with clear track records, and enticing Kennedy into retirement. A Republican majority in the Senate, slim though it is, gives this president more leeway than Reagan had in filling the swing seat of Justice Powell when the Democrats controlled the upper chamber. By adding Utah senator Mike Lee to the roster of potential nominees, Trump has considered departing from the Reagan-initiated pattern of naming sitting judges to the Supreme Court. A senator hasn’t been appointed to the high bench since Harry Truman nominated his former Senate colleague Harold Burton in 1945.

To some observers, Kennedy evinced an infuriating inconsistency in his opinions. They say he twisted in the wind until he fastened on an idiosyncratic reason for deciding a case. To others, he was a thoughtful jurist who steadfastly refused to embrace a results-oriented ideology; instead, he analyzed each case on its own merits. On one point, however, Anthony Kennedy’s position is clear and unwavering: his commitment to the rule of law, the legal profession, the role of the judge, and the American constitutional system. It is that legacy that he will leave in departing, and one that President Trump should look to bolster with his second Supreme Court appointment.

Barbara A. Perry is the the Gerald L. Baliles Professor and director of Presidential Studies at the University of Virginia’s Miller Center, where she co-directs the Presidential Oral History Program. She served as a U.S. Supreme Court fellow and has worked for both Republican and Democratic members of the Senate. Her book, “Edward M. Kennedy: An Oral History,” will be released this fall. Follow her on Twitter @BarbaraPerryUVA.