Speculation Abounds of Potential Kennedy Retirement
Eric Lendrum, Politics Contributor
Opinion -- The Supreme Court’s term for the year 2017 will come to an end on Monday, June 26. In the final stretch before the end of the term, a number of significant decisions are being made just before the lights are turned out, including a handful of landmark rulings on free speech. The court is set to hear several more significant cases, including a case on partisan gerrymandering of Congressional districts, as well as the final decision on President Trump’s travel ban against several Middle Eastern countries.
And yet, despite all of these significant rulings, the biggest potential story to come out of the Supreme Court next week just might have nothing to do with any particular case, but rather, a focus on one of the justices himself. Rumors have been swirling that Justice Anthony Kennedy may announce his retirement on Monday. The last remaining justice nominated by President Reagan, Kennedy is the longest-serving justice on the Court - clocking in at just over 29 years on the bench - and is the second-oldest justice overall at 80 (only behind Ruth Bader Ginsburg, at 84).
As has been repeatedly noted, Justice Kennedy has been the swing vote on a number of recent historic decisions. Despite being nominated by a conservative Republican President, he has ruled alongside the Court’s liberal justices on issues in relation to gay rights - casting the tiebreaking vote on “Obergefell vs. Hodges,” the case that legalized gay marriage - and has also been supportive of affirmative action plans and abortion rights. His more conservative decisions have included ruling in favor of President-elect Bush in “Bush vs. Gore,” and another case that has become the bane of liberals’ collective existence, “Citizens United vs. FEC.”
Recently, as Justice Kennedy continues to host reunions of many of his former employees, speculation has arisen once more not only to the possibility that he will announce his retirement - which he has allegedly been considering for quite some time - but also for the implications of his retiring early in the tenure of President Donald Trump. Doing so would give the President his second Supreme Court nomination in just over five months, after he nominated Judge Neil Gorsuch to replace the late Antonin Scalia, the one other Reagan nominee, who died late last year.
But most importantly, whereas Gorsuch - an originalist - was nominated to replace another originalist, Kennedy’s retirement could possibly pave the way for an equally originalist and conservative justice to replace the man who has been the moderate swing vote for decades now. As MSNBC host Christopher Hayes noted on Twitter, giving the Court a 5-4 majority of conservative justices could possibly lead to the overturning of “Roe vs. Wade,” the landmark case that legalized abortion nationwide.
If Kennedy were to retire so early into President Trump’s tenure, it would leave him plenty of time to pick a nominee that, like Gorsuch, would unify the 52 Republicans in the Senate - and even several Democrats - behind the vote. It would mark another major victory for the President, at a time when some of his legislative achievements - such as a repeal of Obamacare, his budget, and his tax reform plan - have all been stalled. And, some would argue, it would be even more significant than any single piece of legislation, as such a nomination could leave the Court in conservative hands for at least another decade or more (depending on how much longer Justice Clarence Thomas, aged 69, remains on the bench).
As far as potential successors to Justice Kennedy, it would be a safe bet to look back to the same list the President first compiled while on the campaign trail in 2016. There was his initial list of eleven candidates that he released in May of 2016, and his additional list of ten more from September of 2016 - the latter of which included future Justice Neil Gorsuch. In the original nominating process, President Trump allegedly came down to four top choices: Gorsuch, Thomas Hardiman, William H. Pryor Jr., and Amul Thapar. Hardiman was allegedly the runner-up due to support from Attorney General Jeff Sessions, as well as Trump’s older sister, former federal judge Maryanne Trump Barry.
Since then, Thapar has been successfully appointed by Trump to the Sixth Circuit Court of Appeals. A handful of Trump’s other candidates - including Allison Eid, Joan Larsen, and David Stras - have also been nominated to other federal court positions. Although it would make sense to focus on the previous finalists such as Hardiman and Pryor, there are other noteworthy candidates for the nomination, including Utah Senator Mike Lee and his older brother, Utah Supreme Court Justice Thomas Rex Lee.
Even if Justice Kennedy does not announce his retirement on Monday, there is still cause for speculation in this area, as President Trump has well over three years for a possible Supreme Court vacancy to arise again. Like Justice Scalia’s passing and eventual replacement, it could not only come as a massive shock with serious political ramifications, but it could become a hot-button issue for the upcoming 2018 midterm elections and the 2020 presidential election.
You can follow the author on Twitter: @EricLendrum26.
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