As President Trump prepares to announce his choice to replace retiring Supreme Court Justice Anthony Kennedy from a list of candidates prepared by activists from the Federalist Society, he is going beyond legal resumes and right-wing views to consider things like a candidate’s appearance and the looks of his or her family, Politico has reported.
“Beyond the qualifications, what really matters is, does this nominee fit a central casting image for a Supreme Court nominee, as well as his or her spouse,” a Republican close to the White House said.
It would be a poor, potentially discriminatory consideration in selecting one of the nation’s top judges even if the stakes this round were something less profound than the future of American rights for decades to come.
In any case, once Mr. Trump has acted, Senate Republicans owe Americans confirmation hearings that are a lot more probing and enlightening than the game of dodgeball that saw Neil Gorsuch assume his seat without meaningful public scrutiny of his extreme-right views.
Kennedy’s constitutional vision was not consistently liberal or even moderate, as Jeffrey Toobin has well summarized in The New Yorker: “He provided the fifth vote to deliver the Presidency to George W, Bush in Bush v. Gore; he was the author of the majority opinion in Citizens United v. Federal Election Commission, which hastened the deregulation of American politics; he upheld Trump’s travel ban this term; and his votes on the day-to-day grist of the Supreme Court’s docket – on labor law, the environment, and health care- hewed closely to those of his fellow Republican nominees.” But on certain key matters, like gay rights, the death penalty, permitting affirmative action, and embattled abortion rights, Kennedy valuably broke with his conservative colleagues to vindicate individual rights and dignity. His departure now and replacement by one of the people on the Federalist Society list has the potential to catapult the already right-wing Court in a more extreme precedent- and democracy-smashing direction. Which, of course, is what Trump and his supporters are aiming to achieve.
A forthcoming article for the Chicago-Kent Law Review points to the ridiculous weakness of the confirmation process of late. Based on a statistical review, the article, which was cited by Linda Greenhouse in an insightful New York Times opinion piece, finds that Gorsuch’s stonewalling of basic questions about his judicial philosophy and views on past cases set a modern record for lack of responsiveness. A repeat performance at this urgent constitutional moment would disrespect the public’s right to have a say in the process through its elected representatives, as well as the Constitution’s advise and consent mandate. Contrary to Republican claims, there is no ethical duty for nominees to take such a tight-lipped approach. Answering rudimentary questions won’t bias them in future cases.
There will be plenty more to say about the unfolding confirmation dance in days to come. But consider this an early marker: The new Supreme Court nominee needs to answer questions in a forthcoming way and senators of both parties need to do their duty and insist upon it.