The Kennedy Retirement: Bracing for a ‘Post-Persuadable’ Conservative Justice

Veteran defense attorney Joe Hayden says that given the limitations Special Counsel Robert Mueller put on his testimony and the logistical challenges of the questioning, the House Judiciary Committee hearings accomplished as much as was realistically possible to inform the public and confirm the high points of the Mueller Report.


The announcement yesterday by Justice Anthony Kennedy that he was retiring as a Justice of the United States Supreme Court has created shock-waves around the Country for those who fear a dramatic shift in the balance of power between conservatives and liberals in the Court.  During the past 24 hours, political commentators have spoken passionately about what they believe will be an epic confrontation between Republicans and Democrats as to the confirmation of Justice Kennedy’s successor. 

Justice Kennedy served for 30 years on the Supreme Court and for over a decade was considered to be a swing vote between the conservative and liberal factions of the Court.  In reality, he swung more for the conservative faction than the liberal faction.  Statistically, he voted with the conservative majority more frequently than not when 5-4 decisions were rendered.  Nonetheless, he was a “persuadable conservative” who believed in the factual circumstances of the case and legal nuance.  For example, he voted and wrote in favor of a woman’s right to choose and for the expansion of gay rights and marriage equality.  He also showed sympathy for criminal defendants through the years when he voted to strike down the application of the death penalty for those who were intellectually disabled or who committed crimes as juveniles.  He was also sensitive to the rights of those who were incarcerated.  During the past year, however, he appeared to have drifted back towards a more conservative posture since he voted with the conservative majority in every major 5-4 decision, including cases involving gerrymandering, gay rights, upholding President Trump’s travel ban and the major decision yesterday which held that mandatory payments to a public sector labor union violated the First Amendment Rights of a non-union member.  But the key factor about Justice Kennedy remains: he was open-minded and “persuadable” and not an automatic vote for the hard-right position. 

There has been rampant speculation in the media since Justice Kennedy’s announcement that President Trump will nominate a hard-right conservative jurist who will be an automatic vote for the conservative position and virtually unpersuadable.  Democratic leaders have passionately announced that this confirmation battle will be a fight to the death and they will use every tool available to them to postpone the confirmation process until at least after the November election where the composition of the United States Senate may dramatically change for purposes of confirmation. 

Looking at the numbers, the Democrats face an uphill struggle because at the time of the confirmation of Justice Neal Gorsuch, the filibuster was abolished and if every Republican votes for confirmation, the new pick will undoubtedly be confirmed because of their 51 to 49 majority in the Senate.  The Democrats can only hope that President Trump nominates a jurist so radical as to his/her views on social issues, including abortion, that certain Republican Senators refuse to vote for the nominee as a matter of conscience.  This task is even more daunting because the Democrats will have to hold every one of their 49 votes, if they are to have any chance to stop a nominee.  However, certain Democrats who are up for re-election in vulnerable states may be more concerned with the views of their constituency than ideology and ultimately vote to confirm.   

What makes the replacement for Justice Kennedy so critical is that the President will be potentially replacing a conservative, but persuadable, jurist with a hardcore ideologue.  Given the long-term implications for our country, the Democrats have no choice but to fight with every fiber in their being and I have no doubt they will.  New Jersey has two strong United States Senators, Bob Menendez and Cory Booker, who are proven fighters and fearless.  They will undoubtedly be at the front lines of the battle.  There is an old saying in basketball: “If you can’t get the rebound, keep the ball in the air.”  One never knows what can happen during the chaos that ensues when the ball is in the air.  Maybe the other side will make an unforced error.

Veteran Defense Attorney Joe Hayden is InsiderNJ’s Legal Analyst.

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