When selecting someone to fill a vacancy on the United States Supreme Court, a president should consider many factors. What should not be considered are the personal relationships certain candidates have versus others who may be more qualified to serve.
When he met with President Donald Trump to let him know he was planning to resign from the court, Associate Justice Anthony Kennedy reportedly pushed forward the name of Brett Kavanaugh, a former clerk of his, to assume the role, Politico reported Tuesday.
Trump, for the past couple of weeks, made it seem like he was considering many options. But it turned out Kavanaugh was his top choice all along, and Kennedy's influence may have played a part.
Emerging from the private meeting with Kennedy, Trump set his sights on Kavanaugh, who was already a top choice of his. It seems that Kennedy’s discussions with Trump, according to sources familiar with the talks, made his decision final, even as the president continued to push the idea that the choice wasn’t made yet.
When asked about the circumstances on CNN, White House deputy press secretary Raj Shah wouldn't deny that Kennedy played a large role in choosing Trump's Supreme Court nominee.
"I’m not going to read out private conversations that Justice Kennedy had with either members of the White House or the president," Shah said.
He wouldn't, however, say that such conversations didn't happen.
This is troubling for a number of reasons. Although the opinions of justices on potential judges to join them on the Court should matter, a justice choosing his or her own successor should be something Americans reject. It makes the job more nepotistic, rather than one based on merit and the legal integrity of those being considered.
One silver lining is this: Kennedy likely wouldn’t recommend someone to take his position if he believed that person was going to completely undo his own legacy. Kennedy, for a long time the “swing” justice on the Supreme Court, kept the landmark pro-choice decision Roe v. Wade from being completely dismantled.
Worries about this decision being overturned following Kennedy’s departure may be alleviated, somewhat, but at the same time, Kavanaugh is a conservative judge — and he has a decidedly anti-choice record.
That alone should cause senators considering his confirmation to think twice about their votes. The Senate must also delay any decision on Kavanaugh until after the midterms, to follow the precedent set by current Majority Leader Sen. Mitch McConnell (R-Kentucky), who stonewalled Supreme Court nominee Merrick Garland during former President Barack Obama’s tenure.
The method of choosing Supreme Court justices is in dire need of revision for many reasons. But even more must be changed if this practice of choosing one’s own successor is allowed to happen.