April 3, 2017
Dear Justice Kennedy,
This is the first time I have ever written to a sitting Justice of the Supreme Court of the United States. Extraordinary times call for extraordinary measures and these times are certainly out of the ordinary.
As you well know, Justice Antonin Scalia died of a heart attack in Texas in mid-February of 2016. His death came almost nine months before November 2016’s Presidential election. Before Justice Scalia’s body even left the Lone Star State, Senate Majority Leader Mitch McConnell of Kentucky went on record arguing President Obama should not nominate a new Justice to replace Antonin Scalia but should instead defer that responsibility to the next President.
Senator McConnell’s wish was entirely political. As you well know, there is no Constitutional basis for McConnell’s argument. To be sure, Democrats have played politics with judicial appointments as well. Both Senator Biden and Senator Schumer have made the same argument as Senator McConnell. A key difference is that Senators Biden and Schumer never followed through on their hypothetical arguments.
A month after Justice Scalia died, President Obama put forth the name of Merrick Garland as his nominee for the vacant seat on the Supreme Court. This was in keeping with the Constitutional prerogative of the President. Sadly, Senator McConnell followed through on his threat and did not allow any hearings or votes on the nomination. In fact, most Republican Senators refused Judge Garland the basic courtesy of a meeting.
Now it is 13 months after Judge Garland was initially nominated. Donald Trump is President and his nominee for the still-vacant seat on the Court, Neil Gorsuch, will surely be approved by the Senate this week. It’s possible Senator McConnell will need to resort to the nuclear option to make this approval come to pass. Nuclear option or not, Neil Gorsuch will be seated on the Supreme Court in the coming month or two.
I am writing to you specifically of all the Justices because you have shown yourself to be the Justice most willing to eschew judicial philosophical dogma and instead truly take each case on its merits, regardless of the political angles of the case. I am writing to ask you a favor. The favor is not for me, but for the country. Please, to the extent you are able, act as a counter-balance to the addition of Justice Gorsuch. To the extent you are able, please bring the voice of Judge Garland to Court deliberations.
In some ways, you are the last, best hope for a Supreme Judiciary that will not simply rubberstamp anything corporations or the Executive Branch decides to do. The four Justices to your ideological right (assuming Senate confirmation of Judge Gorsuch) can be described as Corporate Authoritarians. Please speak for the great masses of Americans who are in danger of being silenced by the double-barreled powers of money and authority.
A republic is a heavy weight to carry on one’s shoulders, but that is the position you will find yourself in shortly. My thoughts are with you. May your bear up well, knowing that in some very real ways the future of the country is in your hands.