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.
Godspeed,
Chris Dawson
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