Trump may get a second opportunity to nominate a conservative to the Supreme Court
By Kathryn Blackhurst; LifeZette:
Speculation swirled Saturday that longtime Supreme Court Justice Anthony Kennedy may consider retiring from his post in the next couple years, if not before the year is out.
Kennedy, who became the Supreme Court’s most senior associate justice following Antonin Scalia’s February 2016 death, will turn 81 on July 23. Nominated by former President Ronald Reagan, Kennedy has served on the court since 1988.
Although Kennedy has offered no public statement one way or another as he approaches his 30th anniversary on the court, speculation over his possible retirement reached new heights when the date for this weekend’s reunion with his former clerks reportedly was moved up from its original schedule. To make matters even more tantalizing, one of his former clerks, George Washington University law professor Orin Kerr, said Friday, “Soon we’ll know if rumors of Kennedy’s retirement are accurate,” according to the Associated Press.
Kerr, however, took a step back when his words circulated widely and fueled the retirement rumors, tweeting Saturday, “The news cycle in 2017: I am now tweeting about a Drudge banner that links to a story about speculation that quotes one of my tweets.”
The news cycle in 2017: I am now tweeting about a Drudge banner that links to a story about speculation that quotes one of my tweets. pic.twitter.com/qmigtvCyYW
— Orin Kerr (@OrinKerr) June 24, 2017
Nevertheless, rumors of Kennedy’s retirement have periodically reemerged since fall of last year.
If Kennedy announces his retirement at the Supreme Court’s last public session of the season on Monday, as some have speculated, his replacement could likely be nominated and approved before the 2018 midterm elections. A delay past that deadline could risk Democrats’ retaking the Senate and blocking a Trump nominee.
Although Kennedy was nominated by a Republican president, he proved to be one of the court’s most influential and unpredictable voices, as well as a tie-breaker between the four liberal-leaning and four conservative-leaning justices on some of the court’s most important decisions. Should Trump select Kennedy’s replacement, he most likely would deliver a definitive conservative majority to the court — an ideological shift that Democrats dread.
Kennedy incurred conservatives’ ire when his crucial swing vote in the landmark case Obergefell v. Hodges legalized same-sex marriage throughout the country. Although he has voted multiple times to impose restrictions on abortion, pro-abortion advocates cheered his vote cast to uphold abortion in 1992’s Planned Parenthood v. Casey. In 2000’s Stenberg v. Carhart, Kennedy sided with the court’s liberal judges in striking down a Nebraska ban on partial-birth abortions.
“As the court’s most important justice — at the center of the institution’s ideological balance — Justice Kennedy’s ability to bridge the divide between left and right on critical issues such as the right to access abortion cannot be overstated,” Elizabeth Wydra, president of the Constitutional Accountability Center, told CNN. “Replacing Justice Kennedy with a Trump nominee would almost certainly sound the death knell for Roe, just as candidate Trump promised during the 2016 campaign.”
Despite the grief he has caused conservatives, Kennedy still came through for them on other pivotal court decisions. Kennedy wrote the majority opinion for the 5-4 Citizens United v. FEC decision in 2010, which prohibited the government from restricting nonprofits and for-profit associations’ political campaign spending — a ruling much maligned by the Left. He also holds a strong record on supporting the Second Amendment, such as when he sided with the conservative justices in the landmark 5-4 District of Columbia v. Heller case in 2008.
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