By Frederick H. Lowe
Associate U.S. Supreme Court Justice Anthony Kennedy’s impending retirement has black organizations biting their nails, fearing that a more doctrinaire jurist will be selected to replace him although Kennedy had a very mixed record when it came to voting on issues of importance to blacks.
The NAACP, the nation’s oldest civil rights organization, said in a statement, “the court has already undermined basic rights we all believed we enjoy as Americans—the right to strong unions that bargain collectively, one person one vote principles, redistricting and regarding the right of women to make their own health care decision. The stakes for nominating a replacement could not be higher than at any moment in history.”
Justice Kennedy announced he is leaving the court on July 31 after serving 30 years on the court and 43 years in the Federal Judiciary. President Ronald Reagan nominated Kennedy as an Associate Supreme Court Justice on February 18, 1988.
Kennedy’s record is not exactly sterling when it comes to supporting issue of importance to African-Americans.
Kennedy and the conservative majority
Justice Kennedy was considered the Court’s center, but when it came to issues affecting blacks, he swung to the right.
Kennedy joined the Court’s 5 to 4 conservative major to strike down the preclearance section of the Voting Rights Act in a June 5, 2013, ruling in Shelby County, Alabama v. Holder.
Section 5 required certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and Section 4(b), which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting.
Kennedy also voted 5-4 with the Court’s conservative majority to overturn Husted v. A. Philip Randolph Institute,which allowed Ohio to purge from its rolls registered voters who have not voted for a long time.
President Trump, who appointed conservative Neil Gorsuch, Kennedy’s former law clerk, to the Court to replace Justice Antonin Scalia, who died during a 2017 hunting trip, said he immediately would proceed to nominate someone to fill Kennedy’s seat before July 9th.
Trump is considering Brett Kavanaugh, judge on the U.S. Circuit Court of Appeals for the Washington, D.C. circuit, Donny Ray Willet, judge on the Fifth Circuit Court of Appeals and Amy Coney Barrett, judge on the 7th Circuit of Appeals in Chicago to replace Kennedy, according to SCOTUS blog and other sources. All of the candidates have been vetted by the conservative Federalist Society and the Heritage Foundation.
U.S. Senate Majority Leader Mitch McConnell said the Senate will vote to confirm the nominee in the fall.
Booker doesn’t want a vote now
U.S. Senator Cory Booker (D. N. J.), one of two black members of the Senate Judiciary Committee, which must approve any nominee before the name is sent for a vote before the entire Senate, said in a statement that the committee should not consider a nominee from Trump until the ongoing criminal investigation of the President by Special Counsel Robert Mueller is concluded.
Booker, a New Jersey Democrat, warned of the “President’s conflict of interest as it relates to picking a new Supreme Court justice while he is subject of a criminal investigation that could eventually come before the highest court.”
Harris wants a vote after the midterm elections
U.S. Senator Kamala D. Harris (D., Calif.), who also is a member of the Judiciary Committee, said committee members should not vote on the President’s nominee until after the midterm elections.
Harris also called the President’s list of potential nominees “non-starters” who are conservative ideologues instead of mainstream jurists.”
Trump has not publicly released the names of those people he is considering to replace Kennedy.
The Congressional Black Caucus recently blasted the Trump administration for packing the federal courts with unqualified judges.
In letters to McConnell, Senate Minority Leader Charles Schumer, Senator Charles Grassley, chairman of the Judiciary Committee, and Senator Dianne Feinstein, the committee’s ranking member, the CBC charged that many of Trump’s nominees have a “record of hostility to the rights of people of color, women and workers.
“Not only have recent federal judicial nominations lacked robust legal qualifications and racial sensitivity, they have lacked racial and gender diversity,” wrote U.S. Rep. Cedric Richmond, chairman of the Congressional Black Caucus and Congresswoman Eleanor Holmes Norton, chair of the Judicial Nominations Task Force.
The letter names Thomas Farr, who is accused of “well-documented connections to racially motivated and unconstitutional voter suppression efforts.”
In a Time magazine article, William J. Barber II, co-chairman of the Poor People’s Campaign: A National Call for a Moral Revival, wrote that Farr has a 30-year record of white supremacy. Trump nominated Farr for the U.S. District Court in North Carolina.
Wendy Vitter, who Trump nominated for federal judgeship in the Eastern District of Louisiana, refused to say if she supported the 1954 Brown v Board of Education decision, which overturned Plessy v. Ferguson that upheld legal segregation in the public schools. Vitter said she did not want to comment on a previous Court decision.
The Warren Court, which included Associate Justice Hugo Black, a former member of the Klu Klux Klan, ruled 9-0 to support Brown. Vitter is married to ex- U.S. Senator David Vitter of Louisiana.
The NAACP Legal Defense and Educational Fund said Kennedy’s retirement comes at a momentous time for the country.
“The very integrity of our justice system and the rule of law will be affected by the confirmation of a new justice to the Supreme Court,” Sherrilyn Ifill, LDF’s president and director counsel, wrote in a news release. “We have seen the judges that President Trump has advanced for the lower courts. We have seen the extreme jurisprudence of Justice Gorsuch. We can have no confidence that President Trump will present a nominee with a record of commitment to racial equality and justice.”
Ifill added, “there may be no term in recent history that demonstrates the importance of the Court’s composition more than the one that just concluded in which Ohio was allowed to proceed with a process to purge voters for failing to vote.”