The New York Times editorial board made an impassioned plea Sunday for Supreme Court Justice Anthony Kennedy to refrain from retiring in order to prevent President Donald Trump from securing another appointment to the court.
In an editorial titled "Please Stay, Justice Kennedy. America Needs You," the board laid out its reasoning for why Kennedy should remain on the court, at least until a Democratic president is in office to nominate his successor.
"How can we put this the right way?" the board wrote. "Please don't go."
The board argued Kennedy should remain for the simple fact he is a critical swing vote preventing either the institution's conservative or liberal factions from becoming ascendant.
"Sitting between the four liberal justices and the four conservatives, you are the most powerful member of the most powerful court in the country, as you have been for at least a decade," the board wrote.
The board framed its arguments around the dual points of "safeguarding" Kennedy's legacy and "safeguarding" the Supreme Court itself.
Pointing to the nomination of Neil Gorsuch, considered more conservative than Kennedy, the board claimed Trump would pick a replacement lacking Kennedy's penchant for moderation, thereby subverting his legacy.
"Your record is more conservative than liberal, but there’s no question that you are less of an ideologue than anyone President Trump would pick," the board argued.
The editorial's authors further claimed the public's trust had been abraded by Senate Majority Leader Mitch McConnell's (R., Ky.) refusal to hold confirmation hearings on President Barack Obama's initial nominee, U.S. Court of Appeals Judge Merrick Garland, and by his decision to reform the rules governing the filibuster of Supreme Court nominations.
"There is also the institutional legitimacy of and public respect for the nation’s highest court, which we know you cherish even beyond your own legacy," the board wrote. "Right now that legitimacy is eroding."
The writers contended that in the past, justices had contemplated the political balance of the court when choosing to step down.
"Have past justices given a thought to politics when considering the timing of their exit from the court? Of course they have, whether or not they copped to it. But this moment is about so much more than partisan jockeying," the board wrote.
Ironically, for an editorial attempting to convince the justice his tenure on the court was of vital consequence to the nation, the authors showed disdain for the very stances Kennedy has taken that diverge from the court's liberal bloc--the same stances cementing his legacy as a swing vote.
"Of course, part of your charm is that you’re an equal-opportunity disappointer," the board wrote. "In 2013, you signed on to an opinion—a deeply misguided one, we believe—that gutted the Voting Rights Act and allowed states across the country to make it harder for people, especially minorities, to vote."
The board's disdain for Trump and his administration's policies was equally evident.
"To put it bluntly, did you spend a lifetime honoring and upholding the Constitution and the values of civility and decency in American public life only to have your replacement chosen by Donald Trump?" the board asked.
To finalize its case, the board appealed directly to Kennedy by claiming the "the nation's future may hang in the balance" if he should choose to depart while Trump is in office.
"This is your court, Justice Kennedy," the board wrote. "It is facing an institutional crisis, and it needs you."
The editorial comes as rumors swirl that the 81-year-old Kennedy, who was first nominated to the Supreme Court by President Ronald Reagan in 1988, is contemplating retirement.
The speculation has only heightened as prominent members of Congress have seemed to confirm there will be a vacancy this year. In March, Sen. Dean Heller (R., Nevada) claimed during a conversation with Politico that Kennedy would retire in early summer and that efforts to secure a potential replacement would motivate the GOP base heading into the 2018 elections. In April, Sen. Chuck Grassley (R., Iowa), the chair of the Senate Judiciary Committee, echoed Heller's sentiment during an interview with Fox Business.
To date, Kennedy has not tipped his hand as to his plans. In January, Kennedy reportedly hired law clerks for the court's 2018-2019 term, which starts in October, seeming to imply he isn't likely to retire before late 2019.