Nonprofit advocacy leaders are gearing up for a fight in the wake of the retirement of Associate Justice Anthony Kennedy and thus the potential for a second appointment of a conservative leaning judge to the United States Supreme Court by President Donald J. Trump.
Kennedy announced his intentions to retire effective July 31 following 30 years on the bench.
Appointed by Republican President Ronald Reagan, Kennedy gained a reputation of leaning conservative more often than not. He has, however, provided a swing vote that has swayed the Court to recognize more expansive individual rights during his tenure. As the swing vote, he has authored the majority opinion in seminal cases such as Lawrence v. Texas, which invalidated state anti-sodomy laws which had effectively banned same-sex sexual activity, and Obergefell v. Hodges, which recognized the constitutional right for same-sex couples to marry.
Early reactions from the nonprofit community have been mixed. David Cole, legal director for the American Civil Liberties Union, described Kennedy as a “moderating force” who protected free speech, abortion rights, immigrants, and the like. In a statement, Cole called on Trump to appoint a nominee “who will respect the constitution.” Human Rights Campaign President Chad Griffin called for the delay of a nomination until after this November’s midterm elections, describing them as the “most consequential election of our lifetime.” Dawn Laguens, executive vice president of Planned Parenthood Federation of America, noted that a woman’s right to an abortion can be determined by the next justice.
“President Trump has promised to only appoint justices who will overturn Roe v. Wade,” wrote Laguens. “The idea of Trump having his choice to fill another vacancy is terrifying for not only abortion rights, but for our ability to live free from discrimination in this country. Planned Parenthood and our 11 million supporters call on the Senate to reject any nominee who would strip people’s individual rights and freedoms.”
Heritage Foundation Vice President John Malcolm acknowledged Kennedy’s conservative bent, but tendency to provide a swing vote in favor of socially liberal causes. His retirement enables Trump to bring on a “committed constitutionalist,” he said via a statement. Jay Sekulow, chief counsel of the American Center for Law and Justice, called for the swift confirmation of Trump’s presumably conservative nominee so that the Court may be at its full capacity when it opens its next term in October. Family Research Council President Tony Perkins noted the likelihood that the upcoming appointment will “turbo charge” November’s election.
“In a closely divided U.S. Senate, every vote matters,” he said in a statement. “If values voters needed a reason to engage in this election cycle – they certainly have it now. The American people are looking for yet another Supreme Court nominee in the mold of Justice Scalia as President Trump promised and delivered in Justice Gorsuch.”
Tim Delaney, president and CEO of the National Council of Nonprofits, has argued in front of the U.S. Supreme Court and expressed disappointment in hearing of Kennedy’s retirement. Delaney described Kennedy as “extremely level-headed and very thoughtful.” Delaney referenced Republican legislators’ refusal in 2016 to consider President Barack Obama’s nominee, Merrick Garland, and how — with another appointment by President Trump — the Court can be swung further to one side.
Delaney declined to discuss specific potential nominees, but did lament over a perceived recent proclivity to appoint justices without much real-world, state legislative experience. The majority of justices started their legal careers at major firms, which can have the effect of shrinking one’s world view. Even those with prior government experience tend to have federal backgrounds in a relatively small set of issues.
Justices all tend to be very intelligent people, but Delaney expressed concern for nonprofits that the Court might be far removed from the various shades of gray that make up everyday life. Sandra Day O’Connor, who retired 12 years ago, was the last justice with state legislative experience, according to Delaney. He opined that her time as an Arizona legislator brought balance to the court.
It is early to decipher nonprofits reaction to Kennedy’s retirement — and groups of nonprofits are likely to take multiple sides on the issue — but Delaney noted that the next few months will highlight the importance of voting and nonprofits role in encouraging people to the polls.
“At the end of the day, the overall message people should take away is that elections have consequences,” Delaney said. “Nonprofits, while we cannot engage in partisan electioneering for many good reasons, we certainly can — on a nonpartisan basis — help people register to vote, get to the polls, understand the positions of the candidates by hosting candidate debates, and help people become more aware.”
Daniel L. Goldberg, legal director for the Alliance for Justice in Washington, D.C. — an association of 130 organizations seeking to promote progressive values, opined that Kennedy’s replacement could lead the Court to turn back the clock on individual rights by several decades. He noted that Trump’s shortlist is comprised of candidates selected because of their willingness to rescind rights such as access to abortion.
Every potential nominee on Trump’s well-publicized list is there because he or she checks off boxes in terms of a willingness to roll back prior precedent, whether that be with women’s rights, the environment, voting, or healthcare, according to Goldberg — social issues that are often part of nonprofits’ missions. Judge Brett Kavanaugh on the U.S. Court of Appeals for the District of Columbia Circuit, for instance, wrote a dissent for a ruling that upheld the Affordable Care Act. Other laws, such as the Clean Air Act, are politically unpalatable to repeal, but can be chipped away at by a conservative majority on the Court.
“Every one of the individuals on those lists have records and have demonstrated narrow-minded elitism that erodes and takes away critical rights,” he said.
Goldberg expects Trump to identify a nominee in short order, but the U.S. Senate will have the last word. As the Senate has a Republican majority, Goldberg said that it will be up to Sens. Lisa Murkowsi (R-AK) and Susan Collins (R-ME) to determine whether or not they feel comfortable with confirming a nominee that might be the deciding vote in eroding abortion and other rights.
Josh Blackman, professor at South Texas College of Law Houston and 2018 recipient of The Federalist Society’s Joseph Story Award, does not see a scenario in which Democrats will be able to block Trump’s nominee. As Vice President Mike Pence can deliver a tie-breaker, the magic number is 50 votes to confirm. With 51 Republicans, 47 Democrats, and two Independents — Blackman believes that Republicans could even lose a vote or two and still confirm the nominee as some Democrats might feel pressure to confirm ahead of the midterm elections.
“They can resist all they want. It won’t get very far,” he said.
Blackman said that he likes Trump’s entire shortlist and did not identify one who would be particularly good for nonprofits as opposed to others. He believes that there are a whole host of social issues that the Court has punted on in years past that might be revisited following the new appointment, these include abortion, LGBT rights, and duties to accommodate — similar to the recent decision involving a Colorado baker.
One area in which there is some misunderstanding by those outside the legal community is abortion, Blackman said. Many commentators talk about Roe v. Wade, but the case has not been the standard for abortion rights since 1992’s Planned Parenthood v. Casey decision. The Court ruled then that a law could not place an undue burden on a woman’s right to access abortion. Such a malleable test with a more conservative Court is more likely to lead to restrictive state laws being validated than years past.
Blackman described Kennedy as a “you win some, you lose some” justice for conservatives. He would sometimes arrive at a desired conclusion, but in a way that differed from fellow conservatives. The shift from Kennedy to a Trump-appointed justice should be considerable, he said.
“It’s huge,” he said. “This a humongous change in the court’s direction. It’s a very big issue.”