Justice Kennedy stepping down from high court
WASHINGTON — Justice Anthony Kennedy, the Supreme Court’s decisive man in the middle on abortion, gay rights and other contentious issues, announced his retirement Wednesday, giving President Donald Trump a golden chance to cement conservative control of the nation’s highest court and dramatically shift the institution to the right.
The 81-year-old Justice Kennedy, often a voice of moderation over three decades on the court, provided the key vote on such closely divided issues as affirmative action, guns, campaign finance and voting rights in addition to same-sex marriage and the right to abortion.
Though he did not give any hint of his planned announcement when the court convened Wednesday morning, Justice Kennedy had informed his colleagues of his plans, then went to the White House to meet with Mr. Trump, where the president said they talked for half an hour about a potential successor and other topics. The retirement will take effect at the end of July.
Mr. Trump praised Justice Kennedy as a man of “tremendous vision” and said his search for a new justice would begin “immediately.”
The president also signaled to conservatives that they would get a Supreme Court justice who would avoid what they call judicial activism.
Without Justice Kennedy, the court will be split between four liberal justices who were appointed by Democratic presidents and four conservatives who were named by Republicans. Mr. Trump’s nominee, likely to give the conservatives a solid majority, will face a Senate confirmation process in which Republicans hold the slimmest majority but Democrats can’t prevent a vote.
The other two older justices, Ruth Bader Ginsburg, 85, and Stephen Breyer, 79, are Democratic appointees who would not appear to be going anywhere during a Trump administration if they can help it.
Mr. Trump’s first high court nominee, Neil Gorsuch, was confirmed in April 2017. If past practice is any indication, the president will name a nominee within weeks, setting in motion a process that could allow confirmation by the time the court reconvenes in early October.
Mr. Trump already has a list of 25 candidates — 24 judges and Utah Sen. Mike Lee — and has said he would choose a nominee from that list.
Abortion is likely to be one of the flash points in the nomination fight. Justice Kennedy has mainly supported abortion rights in his time on the court, and Mr. Trump has made clear he would try to choose justices who want to overturn the landmark Roe v. Wade decision. Such a dramatic ruling may not be immediately likely, but a more conservative court might be more willing to sustain abortion restrictions.
“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.
Interest groups across the political spectrum are expected to mobilize to support and fight the nomination because it is so likely to push the court to the right. Indeed, the political network founded by billionaires Charles and David Koch and another conservative group said they’ll spend millions of dollars trying to secure another U.S. Supreme Court justice in the mold of Justice Gorsuch.
Republicans currently hold a bare 51-49 majority in the Senate, although that includes the ailing Sen. John McCain of Arizona. If Democrats stand united in opposition to Mr. Trump’s choice, Senate Majority Leader Mitch McConnell of Kentucky — who could barely hide his glee Wednesday moments after Justice Kennedy announced his retirement — can lose no more than one vote. If the Senate divides 5050, Vice President Mike Pence could break a tie to confirmthe nominee.
Three of the Democrats up for re-election in states Mr. Trump won in 2016 - Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana - voted last year for his first Supreme Court nominee. On Wednesday, none of them gave any indication of being interested in a fight over Justice Kennedy’s replacement, even as other Democratic senators and party activists ratcheted up pressure to oppose the pick.
“We will vote to confirm Justice Kennedy’s successor this fall,” Mr. McConnell vowed in brief remarks on Wednesday.
Senate Democratic leaders said Wednesday that Mr. McConnell ought to punt the confirmation beyond November, and they signaled they will wage an aggressive campaign opposing any nominee who threatens to undermine abortion rights and health-care protections for Americans.
“This is the most important Supreme Court vacancy for this country in at least a generation,” said Senate Minority Leader Chuck Schumer, D-N.Y. “Nothing less than the fate of our health care system, reproductive rights for women and countless other protections for middle-class Americans are at stake.”
However, with midterm elections approaching, Republicans won’t want to delay in case they lose the Senate majority in November, which they currently control by only 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 Mr. Trump selects a staunch conservative who opposes abortion. Some key Republicans, like Alaska Sen. Lisa Murkowski, will almost certainly press for a more moderate choice to ensure the survival of the landmark Roevs. Wade abortion ruling.
Prominent on the list of possible successors are Judges Thomas Hardiman of Pennsylvania and William Pryor of Alabama, who were seriously considered for the seat eventually filled by Justice Gorsuch, and Judge Brett Kavanaugh, who serves on the federal appeals court in Washington. Judges Amy Coney Barrett, whom Mr. Trump named to the federal appeals court in Chicago, and Raymond Kethledge, a former Kennedy law clerk who serves on the appeals court based in Cincinnati, also may be considered.
Mr. Trump considered and even interviewed Judge Hardiman last year for the seat that was ultimately filled by Justice Gorsuch.
Judge Hardiman went to the University of Notre Dame as the first person in his family to go to college, and drove a taxi to help pay for his education. He became a federal district judge at 37 and was appointed to the 3rd Circuit in 2007. He turns 53 on July 8. He has built a reputation as a reliable conservative on the court, where he has served alongside Mr. Trump’s sister, Judge Maryanne Trump Barry, who is said to have recommended Judge Hardiman for the Supreme Court vacancy last year.
He has sided with jails seeking to strip-search inmates arrested for even minor offenses and has supported gun rights. He dissented in a 2013 case that upheld a New Jersey law to strengthen requirements for carrying a handgun in public. A Massachusetts native, Judge Hardiman settled in Pittsburgh, where his wife comes from a family of prominent Democrats.
One opinion that could resonate with Mr. Trump: Judge Hardiman signed on to a decision declaring that asylum seekers could not ask a Federal District Court to prevent or postpone their deportation while challenging their removal orders.
Regardless of who replaces him, Justice Kennedy’s departure will be a major change for the high court, where he has been the crucial swing vote for more than a decade. He has sided with the liberal justices on gay rights and abortion rights, as well as some cases involving race, the death penalty and the rights of people detained without charges at the Guantanamo Bay naval base. He has written all the court’s major gay-rights decisions.