Kennedy’s Retirement Will Reshape the Court – By Joseph P. Williams (usnews.com) / June 27 2018
Trump is likely to nominate a staunch conservative to replace centrist Justice Anthony Kennedy.
Supreme Court Justice Anthony Kennedy, a centrist conservative who occupied arguably the most powerful seat on an ideologically-divided institution, has announced his retirement – a surprise move that will unleash an epic political battle over the future of the nation’s highest court – and whether President Donald Trump gets to anchor it further to the right.
Kennedy, 81, made the announcement Wednesday in a letter to the White House, just as the court issued its last set of opinions before its summer recess. Describing his position as “the highest of honors” for members of the legal profession, the jurist told the president he will step down on July 31.
“Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises,” he wrote.
In a separate statement posted on the Supreme Court’s website, Kennedy, who was nominated by President Ronald Reagan in 1988, said he wanted to spend more time with his family, although they were willing to let him continue to sit on the bench.
Speaking with reporters just after the bombshell announcement, Trump called Kennedy “a great justice” who “displayed great vision” and “tremendous heart.” The president then vowed to promptly nominate a replacement from a list of judicial candidates – lawyers and jurists vetted by the Federalist Society, a network of conservative legal activists, and handed to Trump during the 2016 presidential campaign.
“It will be somebody from that list,” said Trump, who will make his second Supreme Court nomination in roughly 18 months as president. “Hopefully we will pick someone who is just as outstanding” as Kennedy.
But whomever Trump nominates to replace Kennedy won’t reach the bench without a fight.
News of the vacancy comes amid long-running partisan fights over the federal judiciary – including an ongoing campaign by the White House and Senate Republicans to stock the lower courts with conservatives after Majority Leader Mitch McConnell stripped minority Democrats of the power to filibuster Supreme Court nominees.
It also comes ahead of critical midterm Congressional elections, in which energized Democrats are focused on retaking power on Capitol Hill – and serving up payback to Republicans for blocking former President Barack Obama from replacing the late Justice Antonin Scalia.
After inheriting that vacancy, Trump nominated Justice Neil Gorsuch, a former Colorado appellate judge who is considered the Supreme Court’s most conservative member. Senate Democrats vehemently opposed Gorsuch, who was on Trump’s list of candidates, but didn’t have the votes to block his confirmation.
Within minutes of Kennedy’s announcement, lawmakers and legal activists on the left and right issued statements that praised the justice, but also drew sharp battle lines over the vacancy, hinted at political strategy and sounded the alarm for like-minded activists.
If Trump’s nominee “is anything like the nominees he’s been sending to the lower federal courts, I expect that we will see a nominee hand-picked by the Federalist Society and the Heritage Foundation intent on carrying out the right-wing ideology” of hardcore conservative Republicans, Sen. Mazie Hirono, a Hawaii Democrat and member of the Senate Judiciary Committee, said in a statement. “Should there be hearings, I will exercise my Constitutional duty to determine whether any nominee appointed will respect the law, the Constitution, and American values.”
Nan Aron, president of Alliance for Justice, a liberal activist group, declared in a statement that the stakes for the vacancy “could not be higher: the future of healthcare, the environment, women’s rights, workers’ rights, LGBTQ rights, racial equity and more.” Since Senate Democrats lack filibuster power, she said, count on seeing “the mobilization of people from all walks of life” to push the White House and the Senate to the left on the nomination.
The American Civil Liberties Union followed suit: David Cole, the organization’s legal director, demanded Trump nominate a jurist who “protects the rights of the most vulnerable among us.”
“This appointment is about our future as a nation of laws and of people whose humanity and rights need to respected,” he said. “Trump’s nominee must be fully vetted by the Senate, and the American people deserve a deliberate – not rushed – nomination process.”
Conservatives, meanwhile, urged Trump and the Senate to nominate another conservative like Gorsuch, and put the candidate on a fast track to confirmation.
“President Trump has done it once, and he will do it again by appointing another great justice to the high court,” Jenny Beth Martin, chairman of the Tea Party Patriots Citizens Fund, said in a statement. “… The American people have made clear their preference for judges who apply the law, rather than making up new law from the bench.”
Tom Fitton, president of the right-leaning Judicial Watch concurred, urging Trump to quickly “put forward another nominee who has a demonstrated record of applying the rule of law rather than legislating from the bench.” The Senate, he added, “should move quickly to work with President Trump to consider and approve a new justice who will apply the U.S. Constitution as written and understood by our Founding Fathers.”
And Leonard Leo – Federalist Society vice president, curator of Trump’s list of candidates and a staunch conservative who has the president’s ear – made clear his expectations for Trump’s second Supreme Court nominee in his first term.
The ideal candidate, will “be like Justice Gorsuch [and] demonstrate excellence in every respect” as well as “earn widespread support from the American people, and bipartisan support for confirmation in the Senate,” he said in a statement. Leo also announced a leave of absence from his job as executive vice president of the Federalist Society – what some see as an unmistakable a sign he will advise the White House on Kennedy’s successor.
Because Kennedy was a moderate Republican who sometimes voted with the liberals, he occupied a power center as a moderate on a court sharply divided along ideological lines. He provided the key vote that affirmed the constitutionality of same-sex marriage as well as in precedent-setting cases involving abortion, affirmative action, the death penalty and religion.
With Kennedy stepping down, however, the court’s power center shifts to the right, and Trump is highly likely to follow Leo’s guidance. And that will officially launch a multi-million dollar campaign to pressure the Senate on the outcome.
