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A swing to the right?

Retirement of Justice Anthony Kennedy could produce a historic shift on the Supreme Court

A swing to the right?

President Trump and Justice Anthony Kennedy participate in a public swearing-in ceremony for Justice Neil Gorsuch in the Rose Garden of the White House. (Carolyn Kaster/AP)

Justice Anthony Kennedy, the swing vote in many important cases on a sharply divided Supreme Court, has announced he will retire on July 31. 

The Wednesday announcement set off a political earthquake that will dominate Washington in the coming weeks. Minutes after the news broke, Senate Majority Leader Mitch McConnell, R-Ky., went to the Senate floor to announce, “We will vote to confirm Justice Kennedy’s successor this fall.”

Kennedy’s retirement comes amid a contentious midterm election season, with Republicans clinging to a 51-49 majority in the U.S. Senate. Since 1975, Supreme Court nominees have waited an average of 67 days for a confirmation vote—which in this case would land in September, weeks before voters go to the polls.

President Donald Trump called Kennedy a “very spectacular man” and said the search for his replacement would begin immediately: “Hopefully we’re going to pick someone who is going to be as outstanding [as Kennedy].” 

Trump in the 2016 presidential campaign promised to pick justices from a public list of 21 candidates, but he’s since expanded it to 25. The list is posted on the White House website. 

Kennedy, 81, has famously been the fifth justice in numerous 5-4 court rulings that shaped American public policy. This week alone he was the swing vote in three major split decisions: One upheld the free speech rights for pro-life pregnancy resource centers in California, another upheld President Trump’s travel ban, and a third ruled public school teachers do not have to pay collective-bargaining fees to unions.

But most will remember Kennedy for his positions on the two most divisive social issues: same-sex marriage and abortion. He wrote the 2003 Lawrence decision overturning sodomy laws, the 2013 Windsor decision overturning the Defense of Marriage Act, and the 2015 Obergefell decision that redefined marriage across the United States. 

“We respectfully disagree with those decisions where Justice Kennedy created ‘rights’ not found in or intended by the United States Constitution,” said Michael Farris, president of Alliance Defending Freedom. “But we also praise Justice Kennedy’s insight and forceful celebration of First Amendment freedoms, his sensitivity to the danger of authoritarian government, and his refreshing desire to preserve and teach the necessity of freedom of speech to future generations.”

Kennedy was the fifth vote in a 1992 case that upheld Roe v. Wade. In Planned Parenthood v. Casey, Kennedy revealed the nature of his basic worldview: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

It was his status as the court’s fifth pro-abortion vote that makes his replacement a critical matter for both pro-life and pro-abortion advocates. Several states have recently passed new protections for the unborn that could lead to direct challenges to Roe v. Wade

“The most important commitment that President Trump has made to the pro-life movement has been his promise to nominate only pro-life judges to the Supreme Court,” said Marjorie Dannenfelser, president of the Susan B. Anthony List.

The irony of Kennedy’s pivotal role on the court is that he was President Ronald Reagan’s third choice for the seat opened by the 1987 retirement of Justice Lewis Powell. Reagan first nominated Appeals Court Judge Robert Bork, an intellectual proponent of “originalism.” 

But groups such as People for the American Way and the late Sen. Ted Kennedy, D-Mass., led a then-unprecedented campaign against the nomination that prompted the Senate to reject Bork. He is the only Supreme Court nominee the Senate has voted down in the last 48 years.

Reagan then nominated Appeals Court Judge Douglas Ginsburg, but revelations that Ginsburg had smoked marijuana as a college student and later as a law professor at Harvard led him to withdraw.

Reagan finally nominated Kennedy, then a judge on the 9th U.S. Circuit Court of Appeals, despite some concerns from conservative legal scholars about opinions that gave the judiciary more power than the Constitution allows. The Senate confirmed Kennedy by a vote of 97-0.

Historically, the average time for a justice to be confirmed, rejected, or withdrawn is 25 days. But that time frame has lengthened in recent decades as partisan fighting over Supreme Court nominees has grown. 

Two years ago, Republicans stonewalled President Barack Obama’s nominee, Judge Merrick Garland, for eight months before the 2016 presidential election. That seat, vacated upon Justice Antonin Scalia’s February 2016 death, eventually went to Justice Neil Gorsuch. Appellate judges Thomas Hardiman, Raymond Kethledge, and William H. Pryor were also on President Trump's short list to fill Scalia's seat.

“We look forward to another nominee who, like Justice Gorsuch, is brilliant, impeccably qualified, and independent,” said Jeanne Mancini, president of the March for Life. 

Many observers expect most Democrats to oppose any Trump nominee, but 10 Democrats face November reelection in states the president won in 2016. Three of them voted to confirm Gorsuch last year. 

The new vacancy is Trump’s second in less than 18 months. The last three presidents each only put two justices on the court in eight years in office. 

Justices Ruth Bader Ginsburg, 85, and Stephen Breyer, 79, are now the two oldest members of the court. The other six justices are age 70 or younger.

J.C. Derrick

J.C. Derrick

J.C. is WORLD’s deputy chief content officer and WORLD Radio’s managing editor based in Dallas. Follow J.C. on Twitter @jcderrick1.

Comments

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  • OldMike
    Posted: Wed, 06/27/2018 06:20 pm

    Here we get another opportunity  to see if our hopes, in electing Donald Trump, bear fruit. 

    If I had my druthers, it probably would have been Sotomayor or Kagan or Ginsberg announcing their retirement. Kennedy hasn’t been with us on everything, notably abortion, but he hasn’t been against us on everything either. 

    Hmmmm.  The Dems in Congress oppose President Trump on just about everything. If there wasn’t so much at stake, it would actually be fun to watch their turmoil and angst if Trump actually nominated a flaming liberal to the Court. 

  •  austinbeartux's picture
    austinbeartux
    Posted: Wed, 06/27/2018 06:58 pm

    Lord, please overturn Roe vs Wade.

  •  Xion's picture
    Xion
    Posted: Thu, 06/28/2018 11:57 pm

    A swing to the right is toward objectivity, justice and the rule of law.  

  • VISTA48
    Posted: Fri, 06/29/2018 07:52 am

    This, more than any other reason, is why I voted for Trump. There are no guarantees - Anthony Kennedy was a huge disappointment as a Reagan pick - but I shudder to think about what a Hillary Clinton nominee would look like. God, please give the President wisdom!