* UPDATE: Buttigieg’s campaign emphasized that, as he said in his interview, Buttigieg would select “people who share my values” for Supreme Court nominations. Rapid Response Communications Director Sean Savett clarified comments on Justice Kennedy were specifically within the context of the “types of Justices who could emerge under his plan to expand 5 new Justices, not if the court remains at 9.” *
Gay Democratic presidential candidate Pete Buttigieg has significantly improved his profile in the lead up to the primary caucuses for the 2020 election. He’s been doing fairly well in certain polls, ranking as high as second in an Iowa survey as of late and in the Top 3 elsewhere around the country.
With that rise in profile however, comes heavier scrutiny of Buttigieg’s actual policies and his chances of securing the nomination. The South Bend, Indiana mayor’s latest policy ideas don’t appear to be going over well.
In an interview as part of “The Candidates Come to Cosmo” with Cosmopolitan, Buttigieg talked about some ideas he had for the Supreme Court of the United States, which currently has a majority conservative slant. Buttigieg’s comments seemed to positively remark on retired Justice Anthony Kennedy, and they aren’t sitting well with voters and some of his fellow candidates.
The publication’s entertainment editor Emily Tannenbaum asked Buttigieg, “The structure of the Supreme Court is a real concern to me, and you’ve proposed pretty drastic changes with the way it’s set up and how many people are on the bench. What specifically is the first thing you’d change and how would you do it?”
In his answer, the candidate cited how important the Supreme Court is on issues of equality and abortion, among others. He emphasizes that he “can’t help but remember” that his marriage to husband Chasten was allowed “by the grace of a single vote” on the bench, referring to the court’s 5-4 vote in recognizing same-sex marriages as legal in 2015.
He continues to explain that he plans on “depoliticizing the Supreme Court,” and also goes on to announce he’ll appoint a commission whose mission is to that effect. He doesn’t explicitly want the court to agree with everything he wants, but he wants to end the “apocalyptic ideological battle” that happens when there’s a vacancy on the court because “it hurts the court and it hurts the country.”
“I’ve floated several ideas and deliberately kept some level of open-mindedness about which ones are going to work best,” Buttigieg said.
Some specific ideas he suggests are adding a group that acts as a reserve bench of sorts (“have 15 members, but 5 of them can only be seated if the other 10 unanimously agree,”) in the hopes of adding more justices that “think for themselves”, and he cites former Justices Anthony Kennedy and David Souter as examples.
Continuing on his hopes for the Court, Buttigieg hopes to install term limits because justices serving on the court are “clinging” by actually fulfilling their lifelong terms, as opposed to “just retir[ing] like everybody else” like “they used to.” He also ponders on rotating justices with Appellate Court appointees.
“There are many legal scholars who think this could be done without a constitutional amendment under current law,” Buttigieg adds.
These ideas have now become heavily scrutinized by writers and social media. In regards to his comments on Justices Kennedy and Souter, Buttigieg’s fellow Presidential candidate Bernie Sanders tweeted that he would rather “more justices like Ruth Bader Ginsburg and Sonia Sotomayor.”
Kennedy was a nominee of Republican president Ronald Reagan when he ascended to the court in 1988, yet is currently considered the court’s ‘swing vote’ – the justice likely to determine the Court’s majority decision, based on his opinion. As Guy Branum pointed out on Twitter that despite his conservative background, Kennedy’s opinions were in support of recognizing gay marriage, voting rights, and abortion rights, evidence he wasn’t completely ‘partisan’.
However, Kennedy was the judge who previously employed the controversial Brett Kavanaugh as a law clerk and opened the seat that Kavanaugh would eventually take on the Supreme. Kennedy’s record also shows him supporting anti-abortion legal opinions and dissenting on progressive issues such as gun control and environmentalism. It has been alleged that Donald Trump purposely pressured Justice Kennedy into retiring so he could appoint a more conservative judge of his choosing, which led to Kavanaugh’s subsequent nomination and confirmation to the court.
Kennedy also wrote the majority opinion of the controversial Citizens United v. F.E.C., which allows corporations to directly fund political election advertising. ACLU researcher Brian Tashman cited that he also took opinions that opposed improving voting rights, supported Trump’s ban of immigrants from Muslim country, and ‘gutted’ labor unions.
Justice Souter, on the other hand, was nominated by Republican President George H.W. Bush as an expected conservative justice, but he became a consistent liberal-opinionated member of the court. He retired in 2009, allowing Democratic President Barack Obama to choose Justice Sotomayor to succeed him.
Supporters of Buttigieg have responded that his desire for more justices such as Kennedy has been misconstrued. Some are saying that Buttigieg admires the non-partisan ideology of justices such as Kennedy, as opposed to others who are predictable based on their political persuasions.
Pete mentions Kennedy and Souter as justices who analyzed the law independently and not along idealogical lines. Having justices like Kennedy and Souter as part of the 15 justice panel reinforces the perspective that the court was not “politicized” by one side or the other. pic.twitter.com/PLe8tFEkTs
— Matt Gowin 💙🌊 (@GowinME) October 24, 2019
Buttigieg offered clarifications of his comments once the Cosmopolitan story came out on Thursday. While on the campaign trail in New Hampshire, he told NBC’s Amanda Golden that he could ensure supporters that his Supreme Court nominees would be “ones who share my progressive values.” At another presser that day he cited Justice Ruth Bader Ginsburg as an “example” of a judge consistent with his envisioned nominees for the Court.
Buttigieg’s Rapid Response Communications Director Sean Savett tweeted that Tashman’s tweet was a mischaracterization of Buttigieg’s words in the interview and cited a plan his campaign released this week that goes into further detail about depoliticizing the highest court in the land.
The repercussions from his admitted respect of Kennedy may be difficult to reckon with for some, however. Rolling Stone senior writer Jamil Smith, who has interviewed Buttigieg, says this portion of the candidate’s Cosmopolitan interview is “utterly disqualifying for me as a primary voter,” going on to look back on their previous interview and say “I’m wondering where this guy is.”