The Case For Leaving Kennedy’s Seat Open

Yesterday’s article dealt with Anthony Kennedy’s open Supreme Court seat in a rather practical manner. Today I admit to being Pollyannaish however I think I’m on solid moral ground. While many on the left join me in asking to keep the seat open until after the November elections with a special eye to control of the next Senate I will take it further saying that we should leave the seat open until the full results and ramifications of the Mueller probe are public. Let’s explore.

My core argument is that Trump’s legitimacy and longevity as President are both suspect therefore why let him nominate a Supreme Court justice who will probably serve for thirty or forty years?

Just based on publically known information it has been established that foreign nations, (most prominent among them Russia), interfered in the 2016 presidential election. The significance of the impact of the interference is the only thing in question.

It has been proven that high ranking members of Trump’s campaign conspired with said foreign powers. Remember, conspiracy is itself a crime not dependent on an underlying crime or the success of that underlying crime. The only publically unanswered question in this aspect of the scandal is a direct link proving Trump personally was involved.

There is a reasonable chance that when the Mueller investigation’s results are made public that Trump will be removed from office. As things currently stand Pence would replace him in the Oval Office. Currently the President and Vice President run as a ticket in America. Therefore if Trump’s election is tainted so is Mike Pence’s.

Our Constitution does not provide for a redo or default to the runner up in a situation like this. If both Trump and Pence are out we simply follow the line of succession. The next spot is Speaker of the House which at the moment is the retiring Paul Ryan. If it happens after the next Congress is seated it will be the next Speaker who may well be a Democrat. In any event that person was elected in a single (and probably gerrymandered) Congressional district; not by the country as a whole.

A big argument I expect to hear is that we can’t leave the seat vacant when the Court goes into its next session on Monday October 1st. That simply doesn’t hold water. I expect the Republicans to make that argument this time around to counter the Democrats’ desire to wait until after the November elections. Recent history proves this both wrong and hypocritical. Antonin Scalia died on February 13, 2016 and was not replaced until April 10, 2017. That delay was the work of Republican Senate Majority Leader Mitch McConnell.

While an even numbered Court is far from optimal it can function. 4-4 ties – and I’d anticipate a lot of them – are resolved by reverting to the lower court’s ruling. From a partisan standpoint, both sides win and loss depending on the prior ruling. The beauty is that a future appeal of a similar nature is almost assured its day in the next full Supreme Court.

One way or another Trump is gone by January 20, 2025; and that would entail reelection in 2020. In the scenario that Trump is removed and Pence takes his place I don’t see Pence being a strong candidate for election on a ticket he heads. In this situation both sides are at equal jeopardy of becoming the minority in the event that one of the eight justices leaves the bench. (While age is certainly a factor in any event all eight are mortal.)

Is this the optimal solution? The answer is no. Unfortunately we are dealing with a reality where we are not in an optimal situation. While to some degree distasteful, this is the fairest possible solution under the current circumstances.

This article is the property of and its content may not be used without citing the source. It may not be reproduced without the permission of Larry Marciniak.