Republican Supreme Court Justice Anthony Kennedy spoke at the Ninth Circuit Judicial Conference on Monday, where he expressed concerns similar to those expressed by Chief Justice John Roberts last year about the growing vacancy crisis on the federal bench:
The Senate is a political entity and will act in a political way and that’s quite proper. When you’re appointed to a lifetime position, it’s proper for the political branch of the government to have considerable authority over that decision. On the other hand, there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified eminent practitioners of the law simply do not want to subject themselves to this process. And I think its incumbent upon members of this conference, particularly the members of the bar to face the fact that they have the responsibility to ensure that this appointment, selection, and confirmation progress is done without the partisan intensity that now accompanies it. This is bad for the legal system. It makes the judiciary look politicized when it is not, and it has to stop.
Kennedy is right about the confirmation process. And while the judge wars certainly did not start when President Obama moved into the White House, they’ve escalated substantially under Senate Minority Leader Mitch McConnell (R-KY). Under McConnell’s leadership, Senate Republicans routinely filibustered Obama’s trial court nominations, the first time such relatively low-ranking judges have ever been the subject of this kind of obstructionism. And McConnell completely misrepresented Senate precedents in order to justify shutting down every single one of Obama’s court of appeals nominees starting last June.
Justice Kennedy would be a much more credible messenger against infecting the judiciary with partisanship, however, if he hadn’t recently joined a legally indefensible dissent in the most politically charged case in decades — voting to wipe out the entirety of President Obama’s Affordable Care Act in the midst of a presidential election. And he would have even more credibility if he hadn’t been the driving force behind the Supreme Court’s election-buying decision in Citizens United.