This isn’t a news blog but this particular news item is of sufficient significance I felt I needed to post on it. Supreme Court Associate Justice Anthony Kennedy today announced that he would be retiring, effective July 31. From NBC News:
WASHINGTON — Supreme Court Justice Anthony M. Kennedy announced Wednesday that he will retire at the end of next month, preparing the way for the most significant change in the court’s makeup in half a century.
The vacancy will allow President Donald Trump to make the U.S. Supreme court a solidly conservative body for years, if not generations, to come — a towering legacy of his time in office.
Trump said Wednesday shortly after Kennedy’s announcement that a search for his replacement would begin immediately and he thanked the justice for his service.
A spokesman for Senate Majority Leader Mitch McConnell, R-Ky., said he saw no reason why a new justice couldn’t be confirmed before the midterm elections in November. McConnell himself said on the Senate floor that the vote to confirm Kennedy’s successor would take place “this fall.”
Here are some predictions on the outcome of this development:
- Trump will appoint a reasonably conservative justice to replace Kennedy
- Democrats will start making rumblings about blocking the appointment as Republicans blocked Merrick Garland’s appointment by Obama
- As the midterm elections near and the obstructionist move actually starts looking as though it will hurt their prospects in November, the Democratic leadership will back off and Trump’s appointment will be confirmed before the election.
Several observations. First, I think that Justice Kennedy is actually a pretty conservative jurist. He is, however, a sexual libertarian and that makes what is otherwise a pretty conservative record seem more progressive.
Second, the Supreme Court is about to become more conservative. That will undoubtedly make Ruth Bader Ginburg, Sonya Sotomayor, and Elena Kagan feel more embattled. What the consequences of that might be I have no idea.
Finally, President Obama really should have persuaded Ruth Bader Ginsburg to retire in 2015. There is an increasingly strong risk that Donald Trump will appoint three or more Supreme Court justices.
I mentioned it on the other thread, Republicans have an effective 50-49 majority in the Senate, so Trump has a high possibility his first pick will be rejected and end up with a compromise candidate.
As to whether Trump gets a 3rd supreme court pick, if the Democrats win the senate in Nov, the chances are 0. And given which states have senate have races in 2020, 2022, its unlikely Trump will have a friendly senate after 2020 even if he won re-election.
How do we know Obama didn’t try to get Ginsburg to retire anytime after 2012?
Thinking from Ginsburg’s perspective, there wasn’t an optimal time after summer 2014 or maybe 2013. 2015 – 2016 the republicans controlled the senate, so Obama may have had to pick a compromise candidate. 2014 was a bit iffy since it wasn’t clear until Oct that the republicans would control the senate…
The biggest effect (for me at least) is that following politics will be even more unbearable and it was already really bad. I expect to be doing more tuning out.
IIRC, Kennedy was the Justice most likely to rule against the government, sometimes with a group from the left and sometimes with the right. He was the fifth vote on all of those Gitmo cases that will stand out as one of the very few times the Court ever challenged the government in military matters. I think he best approximates a libertarian on the Court, except for perhaps cases involving religious statuary. There may have been less left-libertarianism than of the right, but that might be a reflection of the times.
His main legacy though will be a number of idiosychretic decisions that nobody on the Court would join, often voicing his own fuzzy thinking without expressing a rule or holding that could guide future decisions. There is a blistering trial judge opinion condemning Kennedy’s vague directions to him on remand to find out whether a piece of dirt is a wetland. He concluded that only Kennedy knew the answer and he wasn’t going to try and recused himself. Kennedy’s legal analysis was never going to survive the test of time, though his votes might.
If I were a Republican consultant, I would recommend Trump appoint one of the women on that list he has.
@CuriousOnlooker, part of the D’s problem is the competitive Senate races in the Fall are in states that I don’t believe Trump’s judicial picks are going to be considered a problem.
I think you can pretty much divine a person’s political bent from his or her reaction to this from Justice Kennedy:
“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 851 (1992).
Religious conservatives on the Rod Dreher school despise it.
There is no “try”.
sam:
I think it’s bad anthropology but other than that it doesn’t bother me.
Ginsburg’s health is very poor, and her death or incapacitation is likely any time. So, if the Republicans can hold the Senate, he might get a third choice relatively soon.
Andy takes the prize in this thread.
By the way, even if Kennedy’s replace is more conservative, the swing justice is Roberts. And Roberts has been quite swing-y himself.
He’s sided with the Liberals on Obamacare, Gay Marriage, Carpenter to name a few.
And of course the hot issues the Courts deals with is changing; i.e. perhaps more on the powers of the States vs Federal Government, border enforcement, trade, where traditional “Liberal” vs “Conservative” positions are in flux. Perhaps less on “social” issues which have defined the Court for generations.
Take out of state sales tax example, should Conservatives support it to empower States, or oppose it because it gives governments more taxing powers? Hence the lineup of Thomas, Alito, Ginsburg, Kennedy, Gorsuch.
Oops. My memory is faulty; Roberts was against gay marriage.
@sam, here is the reaction of a writer over at ThinkProgress to that passage:
“The problem is that its hippie-dippie, decidedly unlegal language renders its rule vulnerable. Justice Scalia had a point when he mocked Kennedy’s noxiously purple prose as Casey’s ‘famed sweet-mystery-of-life passage.'”
https://thinkprogress.org/kennedy-was-a-bad-justice-76e464024d78/
Maybe there is little overlap between lawyers and poets.
By the way; how does Harry Reid’s decision to nuke filibusters on all nominees except Supreme Court Justices look now?
Seems to be a candidate for award for most epic what goes around comes around.
@PD
“Maybe there is little overlap between lawyers and poets.”
Well, there’s always Wallace Stevens.