Kennedy is retiring. What’s next?
Justice Anthony Kennedy’s decision to retire gives President Donald Trump the opportunity to create a five-member conservative majority on the Supreme Court — something that Republicans have sought for decades. Although Kennedy, who was appointed by President Ronald Reagan, voted with the court’s conservative justices on gun rights and voting rights, he often sided with liberals on gay rights, abortion, affirmative action and the death penalty. The timing of his resignation — just months before the midterm elections — makes the nomination of his replacement a rallying point for both parties. Sen. Mitch McConnell, R-Ky., the majority leader, promised a Senate vote by the fall. Here’s what we can expect in the coming months.
The candidate search
Trump had previously released a list of names he was considering for Supreme Court nominations and he said on Wednesday that he would draw from this list.
Stephen Wermiel, a constitutional law professor at American University, said the White House would have to move quickly to get someone confirmed before the court’s next term begins Oct. 1.
But he said that the White House had “undoubtedly” been reviewing potential nominees to prepare for this moment and that the administration might have even asked some candidates to begin compiling information for background checks.
“Washington’s No. 1 sport for the last six month has been speculating about the retirement of Justice Kennedy,” he noted.
Typically, the president, the White House counsel, the chief of staff and other top officials would narrow the search to two or three people and perhaps call them in for face-to-face interviews. The administration could announce its decision within days.
The background check
Once an announcement is made, a review of the nominee’s professional and personal history begins.
The nominee has to submit a questionnaire for the Senate’s review; it can be thousands of pages long, detailing every case he or she worked on as a lawyer or a judge, along with every public speech, news media interview, published article and even panel discussion. (Filling it out can take several weeks, as a candidate digs up, for example, the date of an interview from 20 years ago.)
The FBI will also conduct a background check looking into financial interests, past work and other pertinent information.
The Senate hearing
Court nominees usually visit as many senators as possible for “meet and greets” before a hearing in front of the Senate Judiciary Committee, whose current chairman is Sen. Chuck Grassley, R-Iowa. The committee’s members, a mix of Republicans and Democrats, must agree on the format of the hearings and how many witnesses will be called.
A nominee normally practices in @ mock hearings, known as a “murder board,” with aides standing in for particular senators and firing off quick volleys of questions.
One potential pitfall: During the hearings, nominees must be careful not to take positions on issues that might come before the court. For example, if a nominee were to directly express a preference to overturn Roe v. Wade, the ruling that legalized abortion nationwide, the judge could have to recuse himself from a future case. So senators must phrase their questions carefully to try to get a sense of the nominee’s judicial philosophy.
After the hearing, the committee will vote on whether to send the nomination to the Senate, where Republicans hold a 51 to 49 majority.
The political fight
The rhetoric could be fierce, even if Democrats have little chance of blocking the confirmation.
Republicans changed the Senate rules last year during the fight over Trump’s nomination of Judge Neil Gorsuch, denying Democrats the ability to filibuster Supreme Court nominees. In 2013 Senate Democrats under the leadership of then-Majority Leader Harry Reid (D-Nev.), reduced the 60-vote threshold for all executive nominees, except for those to the Supreme Court. The procedural change means that Republicans can confirm a nominee with a simple majority.
But Democrats can still try to delay the confirmation process.
They are still angry that Republicans blocked President Barack Obama’s nomination of Judge Merrick B. Garland to the court in 2016, which allowed Trump to nominate Gorsuch last year.
The Democrats will seek to portray Trump’s nominee as “outside the mainstream,” Wermiel predicted, and make the case to voters that this is an important moment in the history of the court.
But for Republicans, the timing couldn’t be better: A conservative nominee could energize the base heading into the midterms.
“This is a huge political moment for both sides in addition to its actual impact on the court,” Wermiel said.