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    Bearing the Load of Justice Kennedy’s Departure

    By Andrea Shorter–

    Who doesn’t remember one of the best scenes in the near cult classic TBS perennially aired movie My Cousin Vinny, when fiancée Mona Lisa Vito (Marisa Tomei) has something of an anxiety attack with a clearly overwhelmed novice attorney Cousin Vinny LaGuardia Gambini (Joe Pesci) while they are holed up in an Alabama backwoods cabin as he prepares the defense of his youthful cousin (Ralph Macchio) and friend from a murder charge and robbery of the local Sac-O-Suds quickie mart? Concerned and frustrated at the lack of lawyerly acumen thus far displayed by her fiancée, who promised they’d get married when he wins his first case, she paces nervously back and forth on the creaky front porch, and the conversation goes something like this:

    Lisa: Well, I hate to bring it up, because I know you’ve got enough pressure on you already. But we agreed to get married as soon as you won your first case. Meanwhile, ten years later, my niece, the daughter of my sister, is getting married. My biological clock is [taps her foot] ticking like this, and the way this case is going, I ain’t never getting married.
    Vinny: Lisa, I don’t need this. I swear to God, I do not need this right now, okay? I’ve got a judge that’s just aching to throw me in jail. An idiot who wants to fight me for two hundred dollars. Slaughtered pigs. Giant loud whistles. I ain’t slept in five days. I got no money, a dress code problem, and a little murder case, which, in the balance, holds the lives of two innocent kids. Not to mention your [taps his foot] biological clock—my career, your life, our marriage, and let me see, what else can we pile on? Is there any more we can pile on to the top of the outcome of this case? Is it possible?
    Lisa: [pause] Maybe it was a bad time to bring it up.

    Maybe you have to be a fan and master of the quotable nuggets of My Cousin Vinny to really appreciate the reference, but even out of context it does impart some of the feelings expressed these days about the spiral of events before us. So, I kind of hate to bring it up, but atop the pile of other chaos and madness emanating from 1600 Pennsylvania and Mar-a-Lago weekends—disastrous draconian “zero-tolerance” separations of children from parents at the border; the obvious lack of any real plan, care or interest in reuniting a now reported 3,000 plus children with their parents; capricious tariff wars on our allies—Supreme Court Justice Anthony Kennedy’s announced retirement has added even more stuff to the burgeoning back-breaking load of issues and challenges heading into the do-or-die midterm elections.

    Justice Kennedy’s legacy as a debatable moderate on civil rights law still provided the heroic swing vote on the court that helped to advance LGBT rights in a series of pivotal landmark cases. Those most notable cases include 2003’s Lawrence v. Texas (6–3) that struck down Texas’ ban on sex between gay men or lesbians; 2013’s United States v. Windsor (5–4), ending the federal ban on marriage between same-sex partners; and eventually 2015’s Obergefell v. Hodges, which struck down state bans on the marriage of same-sex couples.

    Justice Kennedy’s last ruling, in favor of the Masterpiece Cakeshop that refused to serve LGBT people based on religious objections, was certainly not the albeit narrow ruling concerning LGBT rights that we would have preferred, but save for Justice Kennedy’s favorable rulings in the canon of cases over the past 30 years, it is possible that the civil right to same sex marriage would not be the established law of the land.

    There’s plenty enough Democrat political punditry and bellyaching about the timing of Justice Kennedy’s announced departure and the inconvenience it poses before mid-term or even 2020 Presidential elections. “Gee, Justice Kennedy, why now? Couldn’t you have at least waited until after the Democrats’ blue wave in November? Or maybe until we’ve mounted a fighting chance of kicking this guy out of the White House in 2020? How could you, Justice Kennedy?!”

    Well, he didn’t wait. Depending on the choice of most bittersweet narrative, he served on the SCOTUS since 1988, and is either now moving on to a much-deserved retirement at age 81, or is abandoning a desperate, embattled liberal cabal.

    The man child of a President is then taking the opportunity, without delay of waiting for the people to vote in November for a possible gain of Democratic majority hold in the Congress or Senate, to move forward another Gorsuch-like nominee for Senate approval to cement a strong, conservative-leaning SCOTUS for the next 40 years.

    Presently, Democratic high hopes rest on Republican U.S. Senator Collins of Maine positioning her might as the key thumbs up or down on the nominee’s pronounced leanings on Roe vs. Wade, in effect serving as a slim barricade between civilization as we know it and doomsday.

    It is obviously not just the possibility of eroding Roe vs. Wade as established law under a clear conservative majority on the SCOTUS that should rattle our cages. Immigration rights, voter rights, LGBT rights and environmental justice are but a few of the issues at stake when this President’s nominee to dominate the highest court is seated. And, from the looks of it, there’s not much that the democrats can do, other than proliferate angry tweets and demand a reverse “Mitch McConnell wait until the people vote,” as in the fateful Garland nomination, to stave off whatever ghastly second appointment to the highest court in the land is to be made by this sitting President.

    As we hold our noses at the short list of Heritage Foundation and/or Federalist Society’s curated nominees to the SCOTUS, we should keep our eyes on the real prize under the gaze of this President: the possibility of being exonerated by the highest court from whatever criminal charges, egregious misconduct, proven collusions or corruption are expected to be eventually revealed from the Mueller investigation and findings. That’s the ticket for this short-sighted President: How might this benefit me, right now, as President? His self-serving baffling sense of imperial majesty and immunity to the checks and balance as the executive branch of three branches of a democratic government never ceases to astound.

    No matter the merits of his status as a moderate, or the impacts of his rulings both good and bad, the fact remains that the departure of Justice Kennedy at this critical juncture is opening to solidifying potentially forty plus years of a definitively conservative majority stranglehold on SCOTUS.

    As we rapidly course through the seven stages of grief concerning the gravity of Justice Kennedy’s departure, whether or not the fate of the balance of the high court will help to drive a blue wave rally to the polls to vote in a Democratic majority in the house remains to be seen. I certainly hope it does. His departure might not be the best timing, but for better or worse, it is more stuff to bear while preparing the case for a blue tidal wave at mid-term elections.

    Andrea Shorter is a Commissioner and the former President of the historic San Francisco Commission on the Status of Women. She is a longtime advocate for criminal and juvenile justice reform, voter rights, and marriage equality. A Co-founder of the Bayard Rustin LGBT Coalition, she was a 2009 David Bohnett LGBT Leadership Fellow at the Harvard Kennedy School of Government.