PD Editorial: Kennedy’s exit leaves a hole in the center of the court

Count us among those who are sorry that Justice Anthony Kennedy is stepping down from the U.S. Supreme Court.

Kennedy, who announced his retirement Wednesday, has been the most consequential member of the court over the past dozen years, the swing vote who determined the outcome of most 5-to-4 decisions by the high court - the Kennedy court.

Those close votes have become increasingly common because the other justices, like the American public, typically split along partisan lines.

The divisions were evident again this week in the court's rulings (and the sharply worded dissents) on President Donald Trump's travel ban, a California abortion law and compulsory union dues.

The justices sided with conservatives in each of those cases, but Kennedy frequently steered the court toward the center. With his departure, it will swing to the right - unless Trump overplays his hand.

In this instance, that seems unlikely. Trump's fellow Republicans control the Senate, and if his nominee is carefully vetted and reliably conservative, expect Senate Majority Leader Mitch McConnell to put confirmation on the fastest of fast tracks, assisted by a new rule that forbids filibusters on Supreme Court appointments, to get ahead of the midterm election.

Democrats will cry hypocrisy - and they will be right.

When the last Supreme Court vacancy occurred, with the death of Justice Antonin Scalia in February of 2016, McConnell and his fellow Republicans refused to consider Judge Merrick Garland, President Barack Obama's nominee, using the upcoming election as an excuse to keep the seat empty.

It was a cynical exercise in raw politics, and it set an ugly precedent. Garland deserved a confirmation hearing and an up-or-down vote in the Senate.

And so will whomever Trump picks to fill Kennedy's seat.

While the president's nominee is likely to prevail, the outcome isn't an absolute certainty. Republicans have a narrow 51-49 majority in the Senate, and it's unlikely that Sen. John McCain of Arizona, who has cancer, will be available to vote. If that's the case, and Democrats are unified in opposition, just one GOP defection would block Trump's nominee.

That's how Kennedy, a California native, came to the court.

He was a compromise pick by President Ronald Reagan after a GOP-controlled Senate denied confirmation to Judge Robert Bork, who was widely viewed as too extreme. Six Republicans joined Democrats in a 58-42 vote against Bork in 1987. (Reagan's next pick withdrew after it was revealed he had smoked marijuana while teaching at Harvard Law School - which might not be an issue in 2018.)

Kennedy was confirmed in 1988 - an election year - on a 97-0 vote.

Throughout his 30-year tenure on the court, he has been conservative but open-minded.

He earned respect from progressives with pivotal votes and landmark opinions upholding abortion rights and gay rights, including the 2015 ruling establishing marriage equality, and extending constitutional protections to detainees at the Guantanamo Bay prison camp.

Kennedy also voted to strike down gun-control laws in Chicago and Washington, D.C., he wrote the majority opinion in Citizens United, which allowed unions and corporations to spend unlimited amounts of money to influence congressional and presidential elections, and he joined the 5-to-4 majority that delivered the 2000 election to George W. Bush. Yet many on the right made clear their preference for a more predictably conservative justice.

Trump may fulfill their wish, but the nation, like the court, is likely to end up more polarized than ever.

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