Who Knew What, And When, About Justice Anthony Kennedy retiring?


Stanley Cohen, currently living in Minnesota, is the radical lawyer from New York who began his career alongside William Kunstler and Ron Kuby, attorneys who took on clients like the Chicago Seven and Assata Shakur. His Twitter stream is filled with legal tidbits that can prove to be quite interesting, such as this one:

This makes for an interesting set of questions. Who knew about Justice Anthony Kennedy’s impending retirement and when did they know it?

Let us suppose that Cohen’s jurisprudential proposal has traction and withstands scrutiny with sufficiency.

How about this Business Insider headline from June 5, 2018?

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When “McConnell cited the backlog of executive nominees for the decision,” was he aware that in 22 days, on June 27, that backlog would include a Supreme Court nomination?

We know now that, on June 28, the New York Times broke the story that Justice Kennedy’s son, Justin, had loaned Trump over $1 billion as the global head of Deutsche Bank’s real-estate capital markets division. A story with that much potential political impact would almost absolutely mean the Times news editors contacted the principals being reported on (i.e. Trump, both Kennedys, and probably a few others within the bank as well as the Trump organization) as a form of both professional courtesy as well as final verification that nobody would stand up with contradictory evidence after publication. As such, many liberals and some progressives argue that there was a clear setup at play.

Of course, then there’s the reality check:

So much for that theory.

Nope, I think that McConnell knew that Kennedy was angling to retire well before the Times story broke. Let’s not forget, he helped stop Merrick Garland from replacing Justice Antonin Scalia from March 16, 2016 to January 20, 2017, Trump’s inauguration. McConnell is a pro by now at gaming the SCOTUS nomination system for the benefit of his party.

And also don’t forget that McConnell is married to a member of the Trump Cabinet who’s fourteenth in the Presidential Line of Succession, Secretary of Transportation Elaine Chao. That certainly merits inquiry about the level of coordination and communication between the three branches of government.

Whether Trump himself was involved is hard to guess.

(L-R) Justice Kennedy, Sec. Chao, Vice Pres. Pence

But Mike Pence, the theocratic ideologue who has been part of the concerted plot to overturn Roe v. Wade for decades now? Pence told ABC’s This Week in September 2016 “I frankly hold Dick Cheney in really high regard in his role as vice president and as an American.”

Describing George W. Bush’s VP as “a very active vice president,” he said “Vice President Cheney had experience in Congress as I do, and he was very active in working with members of the House and the Senate.” [Emphasis added]

The prospective nominee, Judge Brett Kavanaugh, was a clerk for Justice Kennedy in 1993, five years into the retiring justice’s tenure at the Supreme Court. After playing a significant role in Ken Starr’s investigation of Bill Clinton, up to and including the impeachment debacle, he went on to work for the Bush 2000 presidential campaign, helping Dubya steal the Oval Office by stopping ballot recounts in Florida.

For this, he was richly rewarded with appointment as Judge for the U.S. Court of Appeals for the District of Columbia (Justice Kennedy even swore him in). In 2007, he may have perjured himself before the Senate “at his confirmation hearings when he said he had no role in formulating [the infamous “enemy combatant”] detention policy when he was an official in the Bush White House,” to quote the New York Times coverage of the matter. This demonstrates that this guy is the ultimate Republican Party insider and Beltway operative. Along the way, his judicial trail has included an intricate and precise method which he can be expected to use so to gut Roe v. Wade.

USConstitution.net tells us: The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances.

Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3… All of these checks and balances, however, are inefficient. But that’s by design rather than by accident. By forcing the various branches to be accountable to the others, no one branch can usurp enough power to become dominant.

And then of course this leads to the major donkey in the room:
Democratic Donkey - Caricature
CC BY-SA 2.0 by DonkeyHotey

How did the Democrats get played so badly by a government led by a nasty narcissistic white nationalist game show host?
Republican Death Panel
CC BY-SA 2.0 by DonkeyHotey

Here’s a video of the late Justice Scalia enunciating upon the nature of separation of powers. With the hindsight of what we have seen going on of late, there’s a touch of cruel irony in this video that is too rich to forego:

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