Sunday, July 01, 2018

Anthony Kennedy: The Judge Who Never Left the Republican Party

Mark Graber

When the Republican Party in 1980 nominated Ronald Reagan for president and Al D’Amato captured the Republican nomination for the New York Senate seat, I walked out.  Over the next forty years, prominent Republican members of the federal judiciary trod down the same path.  By the time they left the bench, Harry Blackmun, John Paul Stevens, David Souter and Richard Posner were no longer Republicans.  Sandra Day O’Connor in her last years on the bench did little to hide her disgust with Bush Administration and Republican politics.

Anthony Kennedy never left the Republican Party.  He was a sound Republican when nominated by Ronald Reagan and as sound a Republican when he allowed Donald Trump to choose his replacement.  Kennedy never wavered in his commitments to constructing a constitutional politics that favored the GOP.  From Bush v. Gore (2000) in his early years on the Court to Shelby County v. Holder (2013) in his later years, Kennedy could be counted on as a solid vote for Republican political interests. He was as friendly to Republican business interests as Scalia, Roberts or any other Republican appointed after Sandra Day O’Connor (who was no slouch on these matters).

What some commentators insisted was an independent streak reflected no more than Kennedy’s commitment to the Republican Party of Charles Koch, whose political and business interests gained Kennedy’s unwavering support, rather than the Republican Party of Donald Trump.  The Koch’s are far more committed to busting unions and ending Obamacare than fighting the culture wars.  Far more than any other justice on the Supreme Court, Kennedy implemented the Koch agenda.  He would deny millions healthcare in the name of an abstracted federalism and never met a union busting tactic he could not endorse.  Both Kennedy and Koch understood that professional suburban Republicans are as inclined to terminate pregnancies and to prefer romance with members of the same sex as their counterparts in the Democratic Party.  As the Fortune 500 became more sympathetic to mild race based measures, so did Kennedy.  The affirmative action plan Kennedy upheld in Fisher v. University of Texas (2016) increased enrollment from the same affluent suburbs that spawn Republicans most committed to the Koch business agenda.

The timing of Kennedy’s resignation confirms the strong connections between Trump Republicans in the legislative and executive branches of the national government and Trump Republicans in the federal judiciary, while confounded the few remaining voices left who think Republican judges will remain independent of Republican politics.  Many conservative public intellectuals have demonstrated an honorable independence from Republican politics.  George Will, Jennifer Rubin and Michael Gerson are among the many conservative thinkers who recently walked out of the Republican Party.  Bret Stephens and Ross Douthat regularly excoriate Donald Trump and his Republican enablers in their New York Times columns, even as they remained committed to Burkian visions.  Kennedy and the Republicans on the Supreme Court, however, are more inspired by Mitch McConnell than Jennifer Rubin.  Nothing Trump or his supporters do raises any questions about their allegiance to the GOP.   Decision after decision over the last two years has continued promoting either Republican business or Republican political interests as if nothing politically out of the ordinary is taking place.  Kennedy joined in all enthusiastically, stopping only to deliver the same ineffective scold Republicans in Congress occasionally make to demonstrate that they are not completely beholden to the bigot in the White House.

Ending a relationship has consequences whether the relationship be with another person or a political party.  When you walk out of a political party, you begin to question more seriously policies you always had private doubts about.   The same tactics you thought necessary to prevent the other party from gaining office now seem to you democratically and constitutionally indefensible.  Walking out of the Republican Party improves your hearing.  Personal experience suggests you hear racial dogwhistles far more clearly when you are outside than inside the GOP.

Anthony Kennedy never walked out of the Republican Party.  Throughout his time on the bench, he contributed without question to Republican efforts to dismember unions, gut antitrust laws and close off courts to workers who had legal complaints about their bosses.  Kennedy for more than three decades supported Republican efforts to undo American democracy through vote suppression, gerrymandering and the substitution of money for political support and democratic dialogue.  No matter how loudly Republicans blew, and Donald Trump plays fortissimo, Kennedy in cases involving low-income housing, police stops and the travel ban could be trusted never to hear the racial dogwhistle.

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