Please Don’t Retire, Justice Kennedy
In a 2005 column for National Review, Gorsuch wrote disapprovingly that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”
In short, Justice Kennedy, Gorsuch seems more a guaranteed Scalia vote on gay rights and related cases than a Kennedy ally.
If you were to leave, a Trump-selected successor would almost certainly be in that camp as well -- shifting the court dangerously away from the path of respect and justice on which you helped launch it.
And you, of all people, understand the national uproar that your departure would create. Your selection came after the retirement of Justice Lewis Powell, who, like you, occupied the role of swing justice, and the failed nomination of Robert Bork.
The Bork episode feels, in strange retrospect, like an artifact of a gentler era. One data point: Democrats did not filibuster his nomination; he was defeated by a vote of 42-to-58, with six Republican senators joining the opposition and two Democrats voting for him.
In the current party-line environment, with a nuclear option looming if not already triggered, the fight over your successor might have a predictable end. But the intervening battle would be surpassingly ugly, reviving a debate over abortion rights that you sought to settle a quarter-century ago in declining to overturn Roe.
The country, in the aftermath of the 2016 election, is already so split and bruised. Please, don’t put it through more.
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Ruth Marcus’ email address is ruthmarcus@washpost.com.
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