Law And Order Will Trump's Supreme Court Pick Uphold the 14th Amendment? Civil rights advocates want to see a justice who will uphold the Constitution — every part of it
Little more than 30 years ago, William Coleman, then the chairman of the board of the NAACP Legal Defense Fund, penned a scathing article denouncing the nomination of a former colleague of his in the Ford administration
Robert Bork, whom he had supported for a judgeship in the powerful U.S. Court of Appeals for the D
C. Circuit, should nonetheless be rejected as the next associate justice to the U
S. Supreme Court, Coleman urged. His opposition was rooted in what truly matters in a judge: respect for precedent and settled law
Coleman, a lifelong Republican, was himself an experienced advocate before the Supreme Court — among the controversies he handled, the justices appointed him and later sided with him after the Reagan administration abandoned the position that racially discriminatory religious schools should be denied tax exemptions
As Coleman saw it, he didn't think Bork was fit to uphold one of the Constitution's highest promise: the guarantee of liberty found in the 14th Amendment
In his writings, Bork had repeatedly assailed a long line of historic cases expounding on the constitutional meaning of "liberty" — which, as the Supreme Court had determined in incremental steps, included rights as fundamental as the right to privacy, to use contraceptives, to marry, and to make decisions about the home and raising children
And he wasn't shy about expressing the view that the Supreme Court should correct course and reverse itself
"At this point in our constitutional history, to challenge this settled understanding of 14th Amendment 'liberty' as Judge Bork does is the functional equivalent of challenging the validity of the 14th Amendment itself," Coleman wrote
If Bork had his way with constitutional law, he added, the amendment should also be read to protect African Americans and them alone — not women or other individuals who have since laid hold of its protections
And even for blacks, Bork thought leading cases interpreting the Constitution's equality guarantee were wrongly decided
Thanks to Coleman and other voices who opposed his confirmation, Bork was never elevated
And thanks to that resistance, which sought not specific outcomes but only a commitment to jurisprudence that was already black-letter law, President Ronald Reagan eventually nominated Justice Anthony Kennedy, whose retirement created today's Supreme Court vacancy
As his three decades on the Supreme Court would go on to reflect, Justice Kennedy was a conservative
Yes, he's the author of the four major landmarks enshrining protections for gays and lesbians under the Constitution — his dignitary view of sexual minorities, which he said in 2015 stemmed from the "profound way" the due process and equal protection clauses of the 14th Amendment are connected, will be remembered for a long time
But that wasn't the case in many of the fights that we civil rights advocates deeply cared about
We cannot forget that he was one of the five justices who joined the Supreme Court's decision to invalidate a key provision of the Voting Rights Act of 1965, setting the stage for massive voter suppression around the country
This and other setbacks hurt. As did the term that just ended last week, where Justice Kennedy, on most issues, voted against the values we hold dear — such as racial equality in redistricting, the vitality of a strong public-sector workforce and more notably the need to reaffirm the worth and dignity of Muslims here and abroad
History, it's fair to say, will not remember Justice Kennedy kindly in those cases
But even with his unpredictability on matters of race and equality, Justice Kennedy gave us a reason to hope
To make our arguments. To expect that he might be persuaded to realize the Constitution's promise
As when he recognized in 2015 that the Fair Housing Act, a gem from that wretched 1968, does allow for claims against housing policies that may not be discriminatory on their face but otherwise have a "disparate impact" on minorities
Or when, in the wake of Justice Antonin Scalia's death, he acknowledged, in upholding affirmative action, that our nation's colleges and universities may "reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity
" Those battles, and many others that preceded them, were hard-fought. And now that Justice Kennedy has announced his retirement, and Donald Trump is poised to nominate his replacement, it is not an overstatement to say that everything Coleman, myself, and the justice himself believed in hangs in the balance
As much as President Trump pays lip service to Justice Kennedy's legacy, he and his backers do not want someone like him to replace him
If we've learned anything from his first appointee to the Supreme Court, Justice Neil Gorsuch, and his parade of nominees to the lower courts — some of whom aren't even willing to commit to upholding Brown v
Board of Education, the cornerstone of our constitutional history — they want judicial soldiers
People of ideology with paper trails that leave no doubt as to where they stand on racial minorities, women's rights and LGBT protections
As abominable as some of these nominees have been, they can be tempered and checked by precedent and the appellate process
Not so at the Supreme Court. And just as Coleman believed that Judge Bork could be kept in check as an appellate judge, he didn't think the same applied on the nation's highest court
Without Justice Kennedy's voice and persuadable vote on the court, it is imperative that the process to replace him not be rushed
There should be no vote this year on a nominee. And anyone whose record does not show a demonstrated commitment to the Constitution's core guarantees of equality and liberty for all should be soundly defeated
In a year that we commemorate the 150th anniversary of the 14th Amendment, we should expect no less
Our future and that of our children and grandchildren demand no less. The Friday Cover Read more
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