Trump has chance to reshape Supreme Court
Kennedy retirement guaranteed to ratchet up midterm rhetoric
Supreme Court Justice Anthony Kennedy’s retirement announcement on Wednesday has Republicans thrilled with the prospect of adding to the conservative majority on the court and Democrats calling for a delay in the nomination process before the midterm elections.
Kennedy, who will turn 82 in July, said in a statement that his retirement, which takes effect on July 31, was motivated by a desire to spend more time with his family. The announcement came on the final day of the court’s current term, which began in October.
Appointed by Republican president Ronald Reagan 30 years ago, Kennedy has often been unpredictable and has sided with liberal justices on some major cases. He has been instrumental in advancing gay rights and supporting abortion rights.
The upcoming vacancy sets the stage for a showdown in the Republican-led US Senate over US President Donald Trump’s eventual pick to replace Kennedy before the November elections.
The GOP controls the Senate, 51-49. Senate Republicans changed the chamber’s rules during the nomination battle of current Justice Neil Gorsuch to prevent Democrats from insisting on a 60-vote supermajority, allowing nominees to be confirmed by a simple majority. If the Senate divides 50-50, Vice-President Mike Pence could break a tie.
Supreme Court nomination hearings have often been dramatic battles in Washington, as evidenced by the clashes over Robert Bork in 1987 and Clarence Thomas in 1991.
Trump said he would begin the selection process with a list of 25 conservative jurists. He restored the 5-4 conservative majority with the appointment of Gorsuch last year after the president’s fellow Republicans in the Senate in 2016 refused to consider former Democratic president Barack Obama’s nominee, Merrick Garland. Gorsuch filled the seat of the late Justice Antonin Scalia.
A person familiar with the White House nomination process said there were five front-runners on Trump’s list, Reuters reported.
They are Brett Kavanaugh, a judge on the US Court of Appeals in Washington; Thomas Hardiman of the Philadelphia-based 3rd US Circuit Court of Appeals; Raymond Kethledge of the Cincinnatibased 6th US Circuit Court of Appeals; Amul Thapar, who Trump named to the 6th Circuit; and Amy Coney Barrett, who Trump named to the Chicago-based 7th US Circuit Court of Appeals.
If Trump appoints a justice more conservative than Kennedy, it could mean that Chief Justice John Roberts, as the most centrist of the court’s current conservatives, would become the decisive vote in certain cases. Roberts wrote the decision upholding the Affordable Care Act in 2012.
Kennedy wrote the landmark 2015 ruling that legalized same-sex marriage nationwide and has backed limitations on the application of the death penalty.
Conservative activists have longed to building a solid conservative majority on the court that would push to overturn the 1973 ruling in the case Roe v. Wade that legalized abortion nationwide.
Top Senate Democrat Chuck Schumer said Kennedy’s announcement has created “the most important Supreme Court vacancy for this country in at least a generation”.
Schumer said the Senate should reject any nominee from Trump who would vote to overturn Roe v. Wade or undermine key healthcare protections.
Kennedy joined Supreme Court decisions that affirmed the Roe decision, including a 1992 ruling in the case Planned Parenthood v. Casey.
“If Donald Trump, who has promised to overturn Roe v. Wade, picks someone who is anti-choice, the future of Roe v. Wade is very much in question,” said David Cole, national legal director for the American Civil Liberties Union.
“About the last thing our politics can handle is an open SCOTUS vacancy and Kennedy’s seat no less. Let’s hope I’m wrong,” NBC Political Director Chuck Todd tweeted.
“Let’s not forget that this pick is landing in the middle of one of the most toxic political environments in generations,” David French wrote in National Review. “Progressives believe that Justice Gorsuch sits in a ‘stolen’ seat . ... Expect increasing rage.”
Senate Majority Leader Mitch McConnell said there would be a vote on Trump’s nominee “this fall”, but did not specify whether it would come before the court’s new term in October or before the November elections.
Kennedy on Tuesday joined the court’s four other conservatives in giving Trump a legal victory by upholding the president’s travel ban on seven mostly Muslim countries.