As Washington gears up for one of the most contentious Supreme Court nominations in recent memory, many political figures and pundits are applauding the tenure of retiring Justice Anthony Kennedy, but Liberty Counsel Chairman Mathew Staver says Kennedy leaves a dark legacy on the moral fabric of America.
Shortly after the news of Kennedy’s retirement was announced, President Trump lavished praise on Kennedy.
“He’s been a great justice of the Supreme Court,” said Trump. “He is a man who has displayed great vision. He’s displayed tremendous vision and tremendous heart.”
Staver admits Kennedy has been a key voice and a vital vote on critical issues, including this month’s rulings in favor of Christian cake baker Jack Phillips and crisis pregnancy centers in California. Kennedy also authored a stinging dissent against the vote by Chief Justice John Roberts that saved Obamacare.
“Certainly, he was on the right side of many cases and even the most recent cases that came out of the U.S. Supreme Court. He was a fifth vote in that particular case or cases and made a huge difference,” said Staver.
But he says the cases in which Kennedy got things badly wrong leave a lasting impact.
“I’m going to remember Justice Kennedy for some of the real horrible decisions that he ultimately inflicted because they have caused significant harm and even death,” said Staver. “Between the LGBT agenda, culminating in the marriage decision, and particularly the abortion decisions, that really is the legacy of Justice Kennedy.”
On abortion, Kennedy ruled both for and against federal bans on partial-birth abortions, striking down legislation in 2000 but upholding it in 2007. However, it’s Kennedy’s role in the 1992 Planned Parenthood v. Casey decision that deeply distresses Staver.
That case gave justices the opportunity to solidify or reverse the 1973 Roe v. Wade and Doe v. Bolton decisions that legalized abortion. Staver says Kennedy was initially part of a majority that would have reversed those rulings.
“For thirty days, (then-Chief Justice William) Rehnquist was writing the opinion and Kennedy was right there with him. But he succumbed to lobbying pressure from Justices (Sandra Day) O’Connor, and (David) Souter. After 30 days, he changed his mind,” said Staver.
“He flipped from the five in the majority to overrule the abortion case to flipping it and the minority became the majority. Five individuals ultimately voted to uphold the abortion decisions, albeit somewhat modified,” said Staver.
He says Kennedy bears significant responsibility for the abortions since that day.
“The babies who have lost their lives since 1992, Justice Kennedy is the reason for that. He is the reason for the people who have lost their lives and all the families that have been broken,” said Staver.
Kennedy also took the lead in multiple decisions related to the LGBT agenda. He authored the 2003 Lawrence v. Texas decision striking down state sodomy laws and the 2013 United States v. Windsor ruling which struck down key portions of the Defense of Marriage Act. His majority opinion two years later in Obergefell v Hodges declared a constitutional right to same-sex marriage.
“In June 2015, he authored a horrible decision that has no basis in the Constitution, no basis in the court’s precedents — just an imposition of his will — in which he overturned marriage laws that understood the natural definition and order of marriage being between two people of opposite sex. He struck it down and ushered in so-called same-sex marriage,” said Staver.
Kennedy’s place on the high court also resulted from a nasty political fight. In 1987, President Reagan nominated Judge Robert Bork for the Supreme Court, but the nomination went down to defeat after a fierce Democratic opposition led by Sen. Ted Kennedy, D-Mass.
Kennedy was ultimately Reagan’s third choice.
“What a big difference the decisions would have been if Robert Bork had been confirmed instead of Kennedy,” said Staver. “If you would have had Bork on the bench in 1992, you wouldn’t have abortion from 1992 to the present. You wouldn’t have same-sex marriage from 2015 to the present,” said Staver.
President Trump will likely announce a nominee within the next few weeks and says it will come from his public list of 25 possible choices. While Staver says the list is generally strong, some are preferable to others.
“No, I’m not mostly fine with whoever the president chooses. Each one of these have to be individually vetted. Not everybody is at the same level as (Justice Neil) Gorsuch,” said Staver. “We need to have another person just like that, who has that commitment to the rule of law and the Constitution.”
Staver would not name any preferences for the nomination but he did single out one name he would be very disappointed to see as a nominee, appeals court judge William Pryor.
“Pryor’s on the 11th Circuit Court of Appeals. He had some bad decisions with regards to the LGBT agenda, where he injected an activist viewpoint on his particular decision,” said Staver.
He says Trump and Senate Republicans have to get this pick right, as a litany of critical issues could come before the court in the coming years.
“If they do, abortion will become history. We will stop the bloodshed of innocent children. We need to make sure we have the right person with that judicial philosophy,” said Staver. “The clash between the LGBT agenda and religious freedom and free speech, all these different things, plus more. The second amendment, so many other things. Our basic freedoms are on the line.”