|Donald Trump, Neil Gorsuch, and Anthony Kennedy|
Gorsuch, from Colorado, was Trump's first appointee to SCOTUS, and he combined with Kennedy's sons and Trump to force an opening on the Supreme Court via the elder Kennedy's exit, reports Wayne Madsen. The mainstream media, led by The New York Times, also reports that Anthony Kennedy was pressured to resign, but it's story is much more cautious than the one Madsen produced.
Madsen's report suggests the No. 1 characteristic Trump will look for in a nominee is one who might side with him in any case that comes before the court regarding the Mueller probe.
Meanwhile, some Democrats -- in a rare showing of spine -- say a president who is under criminal investigation should not be allowed to make a nomination to the U.S. Supreme Court, according to HuffPost.
The Times makes no mention that the pressure was designed to possibly give Trump an upper hand in the Mueller investigation. And the newspaper portrays such pressure to create a high-court opening as standard political theater. Madsen, however, says such collusion to influence SCOTUS could be criminal. From the Wayne Madsen Report (WMR):
There are multiple reports coming out of congressional and media circles in Washington, DC that Donald Trump colluded with Supreme Court Associate Justice Neil Gorsuch and the sons of Associate Justice Anthony Kennedy to convince Justice Kennedy to retire. Kennedy's announcement that he is retiring sent shock waves through the country, with fears that Trump's replacement will provide a solid 5-4 court majority that will help Trump roll back several fundamental constitutional rights.
More importantly, a 5-4 Republican majority on the court is seen by Trump as protecting him from any indictment or recommendation for impeachment arising from the Justice Department investigation of Trump and his associates being conducted by special counsel Robert Mueller.
If Trump colluded with Gorsuch and Kennedy to "pack the court" in Trump's favor, that would represent impeachable offenses by both Trump and Gorsuch. The Supreme Court's independence from interference by the other two branches of the federal government -- executive and legislative -- is sacrosanct under the Constitution.
The 81-year old Kennedy was not only pressured to retire by his Trump-appointed court colleague, Gorsuch, but also by his son, Justin Kennedy, a personal friend of Donald Trump, Jr.
Justice Kennedy also saw pressure to step down from his other son, Gregory Kennedy, a Stanford Law School classmate of Peter Thiel, Donald Trump's high-tech adviser. Thiel's Palantir Technology, which has several U.S. intelligence and law enforcement contracts -- including one with Immigration and Customs Enforcement (ICE) for identifying immigrants in the United States for deportation -- is partnered with Gregory Kennedy's former firm, which is ominously called Disruptive Technology Advisers, LLC and which is billed as a "merchant bank" in Los Angeles.
Trump and Gorsuch were particularly forceful in encouraging Anthony Kennedy to step aside, reports Madsen:
Reportedly, Trump personally pressed Gorsuch, who once clerked for Kennedy, to ask the associate justice to retire. Whether or not Trump told Gorsuch that the move was to ensure that the president would remain immune to the court upholding any moves by Mueller, Gorsuch, as a constitutional expert with experience working at the court, would have known what the request meant. Gorsuch would have also known that by cajoling him to pressure a Supreme Court justice to retire, Trump's actions were not only unconstitutional and illegal, but also exposed himself to charges of judicial malfeasance and potential impeachment.
Compared to Madsen's report, The New York Times article has a "let's shrug our shoulders" feel to it. From The Times:
There were no direct efforts to pressure or lobby Kennedy to announce his resignation Wednesday, and it was hardly the first time a president had done his best to create a court opening. “In the past half-century, presidents have repeatedly been dying to take advantage of timely vacancies,” said Laura Kalman, a historian at the University of California, Santa Barbara.
But in subtle and not so subtle ways, the Trump administration waged a quiet campaign to ensure that the president had a second opportunity in his administration’s first 18 months to fulfill one of his most important campaign promises to his conservative followers: that he would change the complexion and direction of the Supreme Court. . . .
There is nothing unusual in urging older justices to retire for partisan reasons. During the Obama administration, prominent liberals called for Justice Ruth Bader Ginsburg to retire so that Obama could name her successor.
Kennedy’s departure is a triumph for Trump, who has taken particular satisfaction in his judicial appointments. Naming justices and judges is easier than forging legislative compromises, and Trump understands that his judicial appointments represent a legacy that will long outlast his presidency.
Meanwhile, a few Democrats were making a rare display of toughness regarding the SCOTUS opening. From Amanda Terkel, of HuffPost:
Some Democratic senators and their allies are starting to make the argument that not only should there be no Supreme Court pick until after the November elections, but that there shouldn’t be one at all while the president remains under criminal investigation.
Special counsel Robert Mueller is investigating President Donald Trump as part of his probe into Russia’s interference in the 2016 election to defeat Hillary Clinton. Trump is not, however, a criminal target of Mueller’s.
During a judiciary committee hearing Thursday, Sen. Cory Booker (D-N.J.) noted that a challenge to the investigation could very well end up before the Supreme Court at some point ― potentially creating a conflict of interest for a president who has asked nonpartisan officials for their loyalty.
“If we’re not going to thoroughly discuss what it means to have a president with this ongoing investigation happening, who is now going to interview Supreme Court justices, and potentially continue with his tradition of doing litmus tests, loyalty tests, for that person, we could be participating in a process that could undermine that criminal investigation,” Booker said. “I do not believe this committee should or can in good conscience consider a nominee put forward by this president until that investigation is concluded.”
Booker was not alone in speaking out:
Sen. Jack Reed (D-R.I.) also mentioned the Russia investigation Wednesday in his statement on Justice Anthony Kennedy’s upcoming retirement, saying Republicans will be “conveniently ignoring the serious investigation into Russia’s pro-Trump campaign interference in our democracy” if they try to rush a nominee through.
According to HuffPo, the Russian investigation is likely to hang over the Trump nomination, for a variety of reasons:
The Russia investigation is likely to come up more if Trump chooses Brett Kavanaugh, a circuit court judge who is on the president’s shortlist of potential nominees. Kavanaugh is one of the most outspoken champions of unitary executive theory ― essentially, unchecked presidential power over the executive branch ― on the bench, and Democrats would no doubt press him about his views on the constitutionality of the special counsel and other matters regarding the probe.
Trump and his GOP allies in the Senate have said they want to have a nominee confirmed by the midterm elections in November. Democrats have argued that they are being hypocrites, as Senate Majority Leader Mitch McConnell (R-Ky.) refused to give a hearing or a vote to Merrick Garland, President Barack Obama’s nominee to replace the late Justice Antonin Scalia, in March 2016. McConnell argued at the time that a Supreme Court confirmation should not happen until after the election.
Trump, of course, won that election, and he nominated Gorsuch for the bench, stealing the seat away from liberals and securing a 5-4 conservative majority.