An Open Letter to Justice Anthony Kennedy

If one looks at Donald Trump's picks for cabinet positions, most have been frightening and have involved ideologues and those not competent for their positions.  A number of his would be judicial appointments have been labeled "unfit" by the American Bar Associations.  Thus, nothing is more frightening than the prospects of Donald Trump nominating a second justice to the United States Supreme Court should Justice Anthony Kennedy retire as some rumors have suggested might occur.  This would be a tragedy for the rule of law and would literally threaten the rights of minorities of all stripes and invite an impermissible intertwining of right wing Christian hate and bigotry into the nation's laws.  An open letter by the Editorial Board of the New York Times pleads with Kennedy to remain in his post through next January to save the country and the court.   I hope Kennedy listens to this plea.  Here are  highlights of that letter:

Dear Justice Kennedy,

As you have no doubt heard, rumors of your impending retirement are, for the second year in a row, echoing around Washington and across America. While you and your colleagues on the Supreme Court were listening to the final oral arguments of the term in recent days, those rumors were only growing more insistent.

How can we put this the right way? Please don’t go.

Sitting between the four liberal justices and the four conservatives, you are the most powerful member of the most powerful court in the country, as you have been for at least a decade. Your vote, more than that of any other justice, has delivered landmark legal victories for Americans of all political stripes, from gays and lesbians seeking equal rights to African-American college students seeking a better education to deep-pocketed corporations seeking to spend more money influencing politics.

You have sent mixed signals about your intentions, but that hasn’t stopped Republicans in Congress from referring to your departure as a done deal.

[T]his moment is about so much more than partisan jockeying. We can’t know what is in your heart, Your Honor, but we do know what your departure right now would mean for the court, and for the nation. It would not be good. [H]ere are two ways to think about this decision: The safeguarding of your legacy, and the safeguarding of the Supreme Court itself.

Start with the legacy. Across your 30 years on the court, your most important opinions — and there are many — have altered not just the lives of millions of Americans but the course of the nation’s history. A sampling: Protecting reproductive rights, and saving Roe v. Wade from being essentially overturned, in 1992. Recognizing the equality and dignity of gays and lesbians multiple times since 1996 and, in 2015, granting same-sex couples the constitutional right to marry.  . . . You’ve also recognized the continuing travesty of the nation’s broken criminal justice system, voting to strike down excessive sentences for juveniles and the intellectually disabled and forcing states to shrink their overcrowded prisons.

Your record is more conservative than liberal, but there’s no question that you are less of an ideologue than anyone President Trump would pick. How do we know? Look at his first nominee, Justice Gorsuch. Perhaps you were comforted by this choice — a well-qualified judge who clerked for you, and who would have been on any Republican’s short list. But Justice Gorsuch has already made it clear that while he’s a fan of individual liberty, at least in some cases, he is unlikely to go to great pains to protect your most cherished values — equality and human dignity.

Justice Gorsuch replaced Antonin Scalia, a move that didn’t disrupt the balance of the court. Replacing you with a hard-line conservative, in contrast, would have enormous consequences for the nation’s laws and Constitution for decades to come. Just ask Sandra Day O’Connor, your onetime fellow swing justice who left the court in 2006 and now watches helplessly as her replacement, the arch-conservative Samuel Alito Jr., votes to tear down her legacy.

[D]id you spend a lifetime honoring and upholding the Constitution and the values of civility and decency in American public life only to have your replacement chosen by Donald Trump?

Do you want to give your seat to a president whose campaign and administration are under criminal investigation, whose closest aides have been indicted or have pleaded guilty to federal crimes?

There is also the institutional legitimacy of and public respect for the nation’s highest court, which we know you cherish even beyond your own legacy. Right now that legitimacy is eroding. The audacious decision by the Senate majority leader, Mitch McConnell, to hold a court seat hostage and use it as an electoral tool “places the court in a position of real institutional peril, . . . . You know as well as anyone that the Supreme Court’s authority depends on public confidence. When that fails, the consequences can be dire.

This is where you come in, Justice Kennedy. You’re a conservative from a time when conservatism was a more or less coherent political philosophy, not a tribal identity. You’re a believer in free markets and individual liberty, and also in human rights and equal justice. A defender of the rule of law, of civility and decorum — those time-honored values now desecrated daily by the current inhabitant of the Oval Office.

The American people are desperate for someone who is not polarizing, and your continued service would be an encouraging sign to them that the court can still operate outside politics. It could also be a model for future justices, though we’re not holding our breath. If you leave, the dam breaks. We realize this isn’t an entirely fair request. Every 81-year-old, especially those who have devoted their lives to the service of their country, should have the freedom to retire without worrying that the nation’s future may hang in the balance. But this is the world we live in. By stealing the seat [of Merrick Garland] for short-term political advantage, Mr. McConnell has inflicted institutional damage from which the court, and the Senate, may never fully recover. This is your court, Justice Kennedy. It is facing an institutional crisis, and it needs you.