High court to lose Kennedy
Departure of key swing vote offers opening to shift bench to right
WASHINGTON — Justice Anthony Kennedy, the Supreme Court centrist who for a generation has cast the deciding vote in the biggest cases, plans to retire, giving President Donald Trump a chance to shift the court sharply to the right.
Kennedy, 81, will depart effective July 31, the court said Wednesday.
Kennedy’s decision to step down offers conservatives the opportunity they have long sought to lock in a reliable five-member majority on the high court. And for them, it comes at an ideal time, since Republicans control the Senate and have voted in unison to confirm most of Trump’s conservative court nominees.
With five solid conservatives, the justices could repeal the right to abortion, expand protections for gun owners, narrow gay rights and strengthen the president’s power to arrest and deport immigrants who are in the country illegally.
Kennedy’s departure caps what was
already one of the most difficult terms for liberals in recent memory, including defeats on public sector unions, Trump’s travel ban and voting rights. Unlike previous years, Kennedy during this term rarely partnered with the more liberal justices to form a majority.
His decision to leave at such a sensitive time — almost guaranteeing that the court will now move to the right — will undoubtedly become a key part of his legacy. It could also put some of his own decisions at risk for overturning.
Kennedy met with the president at the White House on Wednesday, shortly before making his announcement public, Trump told reporters in the Oval Office. He said Kennedy had been “a great justice” and added “hopefully we will pick someone who is just as outstanding.”
The nominee would come from the list of 25 potential candidates that he had released last year, Trump added.
The leading candidates to replace Kennedy are Judge Amy Coney Barrett of Indiana, recently appointed to the U.S. 7th Circuit Court of Appeals, and Judge Brett Kavanaugh, a staunch conservative and a former law clerk for Kennedy who serves on the U.S. Court of Appeals for the D.C. Circuit. Another contender is Judge Thomas Hardiman of Pennsylvania, who sits on the 3rd Circuit and was the runner-up last year for the opening that went to now-Justice Neil Gorsuch.
Barrett, a former Notre Dame law professor, one-time clerk for Justice Antonin Scalia and a mother of seven, is seen as an appealing candidate in the view of some conservatives who advise the White House.
Majority Leader Mitch McConnell said Wednesday that the Senate hoped to confirm Kennedy’s replacement by the fall. With midterm elections approaching, Republicans won’t want to delay in case they lose the Senate majority in November, which they currently control by one seat.
But even with Republicans controlling the White House and the Senate, the confirmation process won’t necessarily be a slam dunk, particularly if Trump selects a staunch conservative who opposes abortion. Some key Republicans, such as Alaska Sen. Lisa Murkowski, will almost certainly press for a more moderate choice to ensure the survival of the landmark Roe v. Wade abortion ruling.
Republican Party officials had been hoping that Kennedy would retire this year, believing a second successful Supreme Court confirmation would give GOP candidates a boost in November.
“Practically, in a midterm election cycle, it’ll be important to remind voters what’s at stake,” said White House legislative affairs director Marc Short.
But watching the Supreme Court shift to the right — with abortion rights and same-sex marriage hanging in the balance — could provide even greater urgency to Democrats, already frustrated by Trump’s policies. Democrats also harbor deep resentment over McConnell’s refusal to consider former President Barack Obama’s nominee Judge Merrick Garland after the 2016 death of Scalia.
“Justice Kennedy’s retirement sounds the alarm over the future of civil rights in this country,” Fatima Goss Graves, president of the National Women’s Law Center, said after the announcement. “Make no mistake, Kennedy’s retirement means the balance of the court will shift, setting back people’s rights — including women, people of color, immigrants and LGBTQ individuals — for an entire generation.” Abortion opponents were elated. Kennedy’s departure “marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law,” said Marjorie Dannenfelser, president of the Susan B. Anthony List.
Since ascending to the court 30 years ago, Kennedy has been its pivotal figure, splitting his votes between its conservatives and liberals in a way that has made him arguably the court’s most influential justice. For years, his presence as a moderate has prevented both sides from pressing too far in one direction.
He was President Ronald Reagan’s third appointee to the high court, and at first he joined with other conservatives, including Scalia, in a steady move towars overturning the right to abortion and restoring prayer to public schools.
But in the spring of 1992, Kennedy surprised his fellow conservatives when he switched sides in a pending abortion case from Pennsylvania and joined with former Justices Sandra Day O’Connor and David Souter to uphold the right to abortion as a matter of precedent.
His departure puts into doubt the fate of the Roe v. Wade decision and the right of pregnant women to choose to have an abortion.