Supreme Court Justice Elena Kagan expressed concern Friday over the court’s lack of a swing vote with Justice Anthony Kennedy’s departure from the bench.
Speaking at a Princeton University conference, Kagan warned that a politically divided court could jeopardize its legitimacy.
“In the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center or people couldn’t predict in that sort of way. That enabled the court to look as though it was not owned by one side or another and was indeed impartial and neutral and fair,” Kagan said.
She continued: “It’s not so clear going forward. That sort of middle position, you know, it’s not so clear whether we’ll have it.”
Kagan’s comments come as President Donald Trump looks to fill the vacancy left by Kennedy with Judge Brett Kavanaugh, who is expected to be confirmed by the Senate during a final vote Saturday.
Kavanaugh was accused in September of committing sexual and physical assault more than 30 years ago, and he testified about the alleged incident at a hearing with the Senate Judiciary Committee last week. During the hearing, some of Kavanaugh’s testimony appeared blatantly political – in one instance he called the handling of the accusation “a calculated and orchestrated political hit.”
“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups,” Kavanaugh said.
Kagan, speaking alongside fellow Supreme Court Justice Sonya Sotomayor, on Friday emphasized the importance of maintaining the court’s legitimacy “especially in this time where the rest of the political environment is so divided.”
“Part of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country now. In other words, people thinking of the court as not politically divided in the same way, as not an extension of politics, but instead somehow above the fray,” she said.