PD Editorial: America doesn’t need another high court vacancy

The U.S. Supreme Court has a few more big cases to decide this term, and then justices will take off for their summer recess. Court-watchers are speculating about whether Justice Anthony Kennedy might use the break as an opportunity to hang up his robes.

We hope, for the good of the nation, he doesn’t. America isn’t ready for the bitter fight that would ensue.

If Kennedy chooses to retire, it would be hard to fault him. He’s 81 years old and has served on the court for three decades, longer than any other current justice. Yet someone with his intellect surely recognizes the political and social peril if he steps down now. He sits at the center of the court - more accurately the center-right - between four liberal and four conservative justices. He has become the nation’s ultimate referee.

Kennedy is conservative on many issues, but a libertarian streak means he sometimes sides with liberals on the court. He helped elevate George W. Bush to the presidency in 2000 but also found a right for same-sex couples to marry.

Republicans are champing at the bit to replace him with a more unyielding conservative, and they recognize that their window of opportunity may be closing. All signs point to a Democratic wave election in November. It would still be an uphill battle for Democrats to take control of the Senate because of where the races are this year, but it’s in play.

If Democrats secure a Senate majority, President Donald Trump likely would not win confirmation for a hard-line conservative, perhaps not for any nominee. Republicans upended the rules when they spent a year running out the clock on President Barack Obama’s final nominee to the high court, Merrick Garland. Should Democrats win back control of the Senate, they could chose to take the same approach and hope for a new president in 2020.

If Republicans try to ram through a nominee quickly using the fact that they nuked the filibuster for U.S. Supreme Court nominees last year, they would create even deeper rifts in a nation already torn apart.

Meanwhile, Trump’s volatile style of governance makes any choice risky. His record of judicial and other nominees is poor. Some of his nominees have proven patently unqualified and others have made racist or bigoted public statements. Yet Senate Republicans confirmed many of them.

Robert Mueller’s ongoing investigation into Trump and Russia would hang over everything, too. If charges were filed or other legal action taken, it could head to the top court, and it’s likely that the president would want a loyalist there.

The last swing justice to leave the Supreme Court was Lewis F. Powell, Kennedy’s predecessor. President Ronald Reagan first nominated the conservative Robert Bork to fill that seat. Bork’s confirmation hearings turned ugly, and the Senate ultimately rejected him. The vote eventually paved the way for the arrival of Kennedy.

The choice is Kennedy’s. Will he soldier on for a couple of more years in the hope that some sanity will return to the political landscape, or will the capstone of a career that has shaped the nation be a resignation that throws gasoline onto the 2018 and 2020 elections, turning the current smoldering partisan politics into a national dumpster fire? We don’t know. But it’s evident that Trump has enough to do with filling all of the vacancies he has created inside the White House. He - and the country - shouldn’t be burdened with filling this one as well.