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Supreme Court To Lose Its Swing Voter: Justice Anthony Kennedy To Retire

Jun 27, 2018
Originally published on June 28, 2018 11:43 am

Updated at 5:54 p.m. ET

Supreme Court Justice Anthony Kennedy announced his retirement Wednesday, setting the stage for what promises to be an epic political battle over his replacement.

A Trump nominee is likely to be far more conservative than Kennedy, who, though appointed by President Ronald Reagan, voted with the court's liberals in some key cases.

Kennedy, who will turn 82 next month, made the announcement the same day the court handed down its last pending opinion for the 2017-18 term. He said he would continue to serve through July 31 of this year.

Speaking from the Oval Office soon after Kennedy's announcement, President Trump said Kennedy has "been a great justice of the Supreme Court." Trump also said the process to replace Kennedy will "begin immediately." The president pointed to a list of potential nominees he put together and made public previously. "It will be somebody from that list," Trump said, adding "hopefully we will pick someone who is just as outstanding [as Kennedy]."

Trump also told journalists Wednesday that Kennedy came to the White House to meet with him prior to making his announcement. The president met with the Supreme Court justice for about 30 minutes, Trump said. The president also said he asked Kennedy for any recommendations as to his replacement but would not reveal whom Kennedy suggested.

In a separate statement, the White House described Kennedy as "a tireless voice for individual rights and the Founders' enduring vision of limited government. His words have left an indelible mark not only on this generation, but on the fabric of American history."

Speaking on the Senate floor, Senate Majority Leader Mitch McConnell, R-Ky., said, "The Senate stands ready to fulfill its constitutional role by providing advice and consent on President Trump's nominee to fill this vacancy. We will vote to confirm Justice Kennedy's successor this fall."

A simple majority of 51 votes is required to confirm a Supreme Court nominee. Senate Republicans currently hold 51 seats. Sen. John McCain, R-Ariz., has been away from Washington, D.C., while he is being treated for brain cancer, but Vice President Pence could cast a tiebreaking vote if needed.

McConnell came under heavy criticism from Democrats for holding up President Barack Obama's nomination of Judge Merrick Garland before the 2016 presidential election, leading to Trump's nomination of Justice Neil Gorsuch to fill the seat on the court open because of the death of Justice Antonin Scalia. McConnell is coming under immediate criticism from Democrats for pledging to confirm a nominee just before this year's midterm elections.

Sen. Chuck Grassley, R-Iowa, chairman of the Senate Judiciary Committee, issued a statement that encouraged the president "to choose a nominee with the credentials, intellect and commitment to the rule of law necessary to serve on the Supreme Court." Grassley also said he looks forward to having the nominee before the committee, which vets and approves federal judicial nominees, for a hearing "in the weeks ahead."

But the Senate's top Democrat argued Wednesday that Kennedy's replacement should not be considered during this midterms year, citing the course Senate Republicans pursued in refusing to consider Garland.

"Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court nominee in an election year," Senate Minority Leader Chuck Schumer, D-N.Y., said from the floor of the chamber. He added: "Millions of people are just months away from determining the senators who should vote to confirm or reject the president's nominee, and their voices deserve to be heard now, as Leader McConnell thought they deserved to be heard then. Anything but that would be the absolute height of hypocrisy."

Reacting to news of Kennedy's retirement, Schumer also said, "This is the most important Supreme Court vacancy for this country in at least a generation. 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. ... The Senate should reject, on a bipartisan basis, any justice who would overturn Roe v. Wade or undermine key health care protections. The Senate should reject anyone who will instinctively side with powerful special interests over the interests of average Americans."

There is little doubt about Kennedy's mark on history. Quite simply, he remade the face of marriage in America. More than any other justice, he was responsible for the advancement of LGBT rights. He wrote four of the court's opinions on the subject over nearly two decades and ultimately declared marriage between two people of the same sex a fundamental right protected by the Constitution.

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family," Kennedy said in his opinion. "In forming a marital union two people become something greater than what they once were."

A pivotal role and someone admired by colleagues

On a court that has become increasingly conservative, Kennedy's role has been pivotal. In 5-to-4 decisions, his vote has usually determined the outcome on some of the hottest legal and social issues of the day — not just gay rights, but abortion, campaign finance, gun rights, affirmative action, the war on terrorism and the death penalty.

"His jurisprudence prominently features an abiding commitment to liberty and the personal dignity of every person," Chief Justice John Roberts said in a statement Wednesday. "Justice Kennedy taught collegiality and civil discourse by example."

Justice Clarence Thomas, the second-longest current justice behind Kennedy, said he is "deeply, deeply saddened to see Justice Kennedy leave the Court." He also praised his demeanor and civility.

"Even during the most difficult and challenging times, he had a way of elevating each of us by his example," Thomas said. "He is a good man who will be remembered not only for a long and productive career on the bench but also for the way he conducted himself."

Justice Ginsburg called him a "true gentleman, a caring jurist, and a grand colleague in all respects." She added, "I will miss the pleasure of his company at our Conference table, his helpful suggestions on circulating opinions, his recommendations of art exhibitions to visit with my chambers staff, and much more. For the good he has done during the 43 years he has served as a member of the Federal Judiciary, he has earned a rousing Bravo."

Justice Stephen Breyer called him "a judge of great vision." Justice Samuel Alito said Kennedy "will surely be remembered as one of the most important justices in the history of the Court." Justice Sonia Sotomayor called him "one of the most thoughtful colleagues I have known" and added that "it is undeniable that he has had a monumental effect on the law." Justice Elena Kagan said "his legacy will be of enduring importance" and that she would "miss his kindness, decency, and warmth."

Justice Neil Gorsuch, who served as a clerk for Kennedy a quarter-century ago, praised his integrity and wisdom and called him a "great man and a great judge." "It was the honor of a lifetime to serve as his law clerk 25 years ago," he said, "and it has been an unexpected joy to serve this year as his colleague."

(Read their full statements.)

Landmark decisions in jeopardy

President Trump has pledged to nominate a replacement who will almost certainly vote differently on many of these issues, putting some landmark decisions in jeopardy — from Roe v. Wade to the legalization of same-sex marriage.

That will please and reward conservative groups that have supported him. At the same time, it will galvanize opposition among Democrats, and potentially even some moderate Republicans.

The confirmation rules this time, however, will be different from the get-go. When Democrats threatened to delay Trump's first nominee, Neil Gorsuch, in 2017, Republicans voted to exempt Supreme Court nominations from filibusters, which required a supermajority of the Senate to cut off debate.

So this time, the president will make his choice knowing that he needs only to get a majority of the Republican-controlled Senate to approve his nominee. And McConnell has proven adept at keeping his troops in line on judicial nominations.

Still, the pressure will be intense, and the stakes high.

If anyone has doubts about how different the court is likely to be when a centrist conservative like Kennedy is replaced by someone more hard-line, there is the example of Justice Sandra Day O'Connor's retirement in 2006. President George W. Bush chose Samuel Alito to replace O'Connor, and the effect has been profound; O'Connor has even complained privately that Alito is systematically dismantling her legacy.

Perhaps the best example of that dismantling is in the area of campaign finance. O'Connor, onetime GOP leader of the Arizona Senate, voted to uphold landmark campaign finance legislation in 2003 — only to see the court reverse that decision seven years later, after Alito replaced her.

While O'Connor was on the court, a majority of justices continued to support legislation that regulated campaign fundraising. But after her retirement and the Alito appointment, Kennedy wrote the court's 5-to-4 decision in Citizens United, the 2010 case that remade the way campaigns at every level are conducted.

The decision unleashed an ever-growing flood of cash into political campaigns. It reversed a century-old understanding that had sought to prevent corruption by barring corporations, and later labor unions, from spending their general treasury funds on candidate elections.

For Kennedy, reversing that legal understanding from the early 1900s was the realization of a long-held view of free speech.

"Political speech is indispensable to decision-making in a democracy," Kennedy wrote in the Citizens United decision, "and this is no less true because the speech comes from a corporation rather than an individual."

In general, there is probably no greater example of Kennedy's approach to the law, and how it will almost certainly differ from Trump's nominee, than the question of how to interpret the Constitution: whether the Founding Fathers intended their creation as a static document, bound by the literal meaning of its words, or whether those words represent concepts of liberty to be interpreted over time.

In a 2003 decision that struck down a Texas law criminalizing private homosexual conduct, Kennedy said that the Founders understood that they were writing a document for the ages.

"They knew time can blind us to certain truths," he wrote in Lawrence v. Texas, "and later generations can see that laws, once thought necessary and proper, in fact serve only to oppress."

The men and women on Trump's list of potential replacements disagree with that view, for the most part. They side with the late Justice Antonin Scalia and his successor Justice Neil Gorsuch, as well as other conservatives on the Supreme Court today, who believe the nation is bound by the original intent of the Founders.

During his presidential campaign, in a bid for the support of social conservatives, Trump issued two lists totaling 21 names and pledged to pick his first Supreme Court nominee from those lists. He did just that in naming Gorsuch to fill the open seat once occupied by Scalia.

People involved in that selection process say that the president intends to expand that list a bit now. He might add Judge Brett Kavanaugh from the U.S. Court of Appeals for the D.C. Circuit, and possibly former Solicitor General Paul Clement, a highly regarded Supreme Court advocate who served in the George W. Bush administration. Clement's main drawback in the president's mind, though, is said to be that he has no judicial track record to examine.

Back in consideration are some of the names on the previous list: Judge Thomas Hardiman, of the 3rd U.S. Circuit Court of Appeals, which covers Pennsylvania, Delaware, and New Jersey, and Judge Raymond Kethledge, who serves on the 6th Circuit, which covers a large part of the Midwest. Hardiman was the runner-up last time and is known as a staunch gun rights advocate. All four are in their early 50s.

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MARY LOUISE KELLY, HOST:

The decider - that is the role that Justice Anthony Kennedy has played on the Supreme Court for a long time - 30 years. He has played a consequential role authoring decisions that remade the face of marriage in America, and he wrote all four of the court opinions that recognized gay and lesbian rights.

AUDIE CORNISH, HOST:

Justice Kennedy is 81 years old. His retirement will undoubtedly spark a furious battle over the nomination and confirmation of a successor. Joining us now is NPR legal affairs correspondent Nina Totenberg. Welcome to the studio.

NINA TOTENBERG, BYLINE: Hi there.

CORNISH: So let's start with why Kennedy is so important, why this departure's such a big deal.

TOTENBERG: Well, for decades, Kennedy sat at the center of the Supreme Court, his vote often determining the outcome of really the hottest legal issues of the day, whether it was gay rights, abortion, the death penalty, the war on terror, school prayer, gun rights, race or campaign finance. Kennedy's vote was so often decisive that, as one justice put it ruefully, there are times the rest of us might as well go home. And because the Supreme Court itself is now more divided than ever between Democratic and Republican appointees, a Trump-named successor is likely to tip the balance decidedly to the right, creating a hardcore conservative majority of a kind not seen probably in three-quarters of a century.

CORNISH: And it goes without saying that we can probably expect a furious confirmation battle in the Senate, right?

TOTENBERG: You bet. Republican leader Mitch McConnell is certain to try to win confirmation of any Trump nominee before the election. And if that were not enough to provoke a battle, there is the fact that Democrats remember with rage how McConnell blocked any consideration of President Obama's appointment of Judge Merrick Garland to the high court for nearly a year after the death of conservative Justice Antonin Scalia and then how Republicans went on to abolish the filibuster so that they could win confirmation of Trump nominee Neil Gorsuch.

CORNISH: Nina, being the swing vote for the last 30 years, give us a sense of some of the issues where Justice Kennedy really made a mark.

TOTENBERG: Well, more than any other justice, he was responsible for the advance of LGBT rights, writing all four of the court's opinions over nearly two decades and ultimately declaring marriage between two people of the same sex a fundamental right protected by the Constitution just as marriage between two people of different races is protected.

(SOUNDBITE OF ARCHIVED RECORDING)

ANTHONY KENNEDY: No union is more profound than marriage for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.

TOTENBERG: But the past does not portend the future, he said, and the Founding Fathers knew that they were creating a constitution to create rights of all persons to enjoy liberty as we learn its meaning.

(SOUNDBITE OF ARCHIVED RECORDING)

KENNEDY: They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress.

TOTENBERG: The same-sex marriage cases may have been the most momentous of his career, but they were hardly the only decisions to have a profound effect on the country. For example, his 2010 decision written for a narrow 5 to 4 majority similarly remade the way political campaigns are conducted in the nation. The decision unleashed an ever-growing flood of cash and reversed a century-old legal understanding that had sought to prevent corruption by barring corporations and later labor unions from spending their general treasury funds on candidate elections. For Justice Kennedy, though, reversing that legal understanding from the early 1900s was the realization of a long-held view of free speech.

(SOUNDBITE OF ARCHIVED RECORDING)

KENNEDY: Political speech is indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. Government may not suppress political speech on the basis of the speaker's corporate identity.

TOTENBERG: So hold onto your hats; we're in for a hell of a ride.

CORNISH: What could change forward when you think about concrete shifts?

TOTENBERG: Well, just for starters, Roe v. Wade might be reversed. Lots of federal regulations might be thrown out, might be a different, more - less tolerant view of gun regulation and affirmative action. He was the fifth vote to uphold affirmative action in higher education. That could change, too - so as REM once put it, the end of the world as we know it.

CORNISH: That's NPR's Nina Totenberg. Nina, thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.