Why the choice of Anthony Kennedy's replacement to US Supreme Court is pure politics

The life choices that Americans make depend on who the replacement is.

 |  4-minute read |   01-07-2018
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Associate justice Anthony Kennedy, often called the "swing vote" on the nine-judge bench of the Supreme Court of United States (SCOTUS), has announced his retirement.

In a statement, the Supreme Court said 81-year-old Kennedy will step down on July 31, 2018. Announcing his retirement, Kennedy said, "It was the greatest honour and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years in the Supreme Court."

Kennedy wants to spend more time with his family, even though they were fine with him staying on. So, President of United States (POTUS) Donald Trump gets to nominate a replacement - the second such opportunity during his two-year governance. Not many US presidents have got that opportunity.

The development would prove to be a huge weapon in the hands of the Trump and Republican administration to completely change the complexion of the Supreme Court comprising nine judges to make it a majority conservative one. The impact of the development on American society will be humongous.


In March 2016, then president Barack Obama nominated Merrick Garland to replace the seat vacated on the death of associate justice Antonin Scalia. With presidential elections due in November 2016, the Republican Congress stood to a man and refused audience and Senate hearings to the nominee, which is mandatory, before he could take his seat on the bench.

The Republicans refused to even discuss the nominee's credentials as they felt that he was no replacement to a true blue conservative in Scalia. Scalia was a self-confessed Originalist and a conservative who strongly opposed abortion rights and same-sex marriage. Scalia believed the US Constitution had no say on these subjects and it was for the executive led by the Congress at the federal level and various houses at the state levels, to legislate and provide for them.

Scalia was convinced that judicial intervention and imprimatur in such issues was a clear transgression into the legislative sphere.

The Republicans were convinced that Obama's nominee was no suitable to replace Scalia and the seat could be tied up for several decades since appointments of justice to SCOTUS is for lifetime.

Hence, thy indulged in filibustering of the worst kind and refused an audience to Merrick Garland. The nomination turned out to be a damp squib. Mitch Mcconnell, the Senate Majority leader for Republicans "shamelessly stalled the hearings for Merick Garland with open defiance".

Republicans successfully halted Garland's elevation on the ground that Obama was a lame duck POTUS in an election year with only six-seven months to go and should therefore not exercise his right to nominate a replacement.

In this way Garland was denied at shot at the office.

The Republicans' replacement for Scalia was Neil Gorsuch whose nomination sailed through as Republicans had a majority in both houses in the Congress and the Senate committee also did not prove to be an impediment.

Gorsuch has lived up to the expectations of the Republicans in two recent cases. In the Masterpiece cake shop case, the owner of a cake shop refused to supply a made-to order wedding cake for a same-sex couple in Colorado. SCOTUS held that the owner's refusal was part of the freedom of speech under First Amendment and religious beliefs.

The Trump administration even engaged its counsel to argue for the cake shop owner.

In the second case, Punjabi-Indian immigrant Neal Katyal, who was previously additional solicitor general during the Obama administration and a young star on the legal firmament, was made to appear before the court repeatedly because he led the charge against Trump's travel ban, for the state of Hawaii.

Even during his campaign, Trump put together a list of 25 names, which included Gorsuch, to be nominated to the Supreme Court.

Seven of these judges, according to The Washington Post, seven people from the list of 25 could be on Trump's mind to replace Kennedy. Amul Thapar, an Indian immigrant, is one among them.

Thapar is known for his conservative upbringing, outlook and philosophy aligning with the concerns of the Republican party. Kennedy was a nominee of a Republican President, and was "perceived to be the conservative conscience on the court since 1988". But, overtime, he became a "swing vote" as in the Obergefell (same-sex marriage) case, tilting to majority and liberal view of upholding the right to marry for the LGBT community.

However, in the Masterpiece cake shop verdict and Trump travel ban issue, Kennedy stuck to his conservative values in the 5:4 decision.

America is busy speculating who will replace Kennedy because the life choices that Americans make depend on who the replacement is.

There is no doubt that the question is not revolving around justice. It's politics, stupid.

Also read: Why is Modi government not showing interest in Vijay Mallya's plea bargain


Vijayaraghavan Narasimhan Vijayaraghavan Narasimhan @narasimhan6

Author is a practising advocate in the Madras High Court.

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