Orlando Sentinel

High court to lose Kennedy

Departure of key swing vote offers opening to shift bench to right

- By David G. Savage Washington Bureau

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.

 ?? T.J. KIRKPATRIC­K/BLOOMBERG ?? Justice Anthony Kennedy’s departure from the Supreme Court is scheduled for July 31.
T.J. KIRKPATRIC­K/BLOOMBERG Justice Anthony Kennedy’s departure from the Supreme Court is scheduled for July 31.

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