Kennedy to Retire

Jake Lo: What judge is going to believe that?
Agent Wesley: My judge.
--Rapid Fire

Yesterday, Supreme Court Justice Anthony Kennedy announced that he would retire. Kennedy has often played the role of swing or wildcard voter on high court rulings otherwise divided along predictable ideological lines given the makeup of the other eight supremes. Should his replacement carry more commitment to one of those competing ideologies, then the balance of justice, at least the current high court version, will tilt accordingly.

Because they currently hold enough executive and congressional power to get it done, many on the right are relishing at the spectre of such a rebalancing. Conversely, many on the left are cursing the process that permits a president that they did not support to nominate another judge who could move the court further from progressive sympathy.

The roles would be precisely reversed, of course, if the 2016 presidential election turned out differently.

The frenzy that Kennedy's announcement has already created is but a harbinger of the political theater that will take the stage as the nomination process for a replacement justice unfolds.

As the theater plays out, I will be remembering this. It is unlikely that our founding ancestors fought a bloody revolution to ultimately concentrate so much political power in the hands of nine (or really five) lawyers who are tenured for life.

Unfortunately, when positivism trumps the rule of law, the modern translation of the framer's original design should not be surprising.