The longtime swing vote on the U.S. Supreme Court and the architect of the landmark same-sex marriage decision, Justice Anthony Kennedy, announced his retirement Wednesday, setting up an epic confirmation battle in the Senate, with Democrats facing the possibility of a generational shift to the right.
Kennedy submitted his letter of resignation, effective July 30, to President Trump, who already has appointed a constitutional originalist, Neil M. Gorsuch, to the court to succeed the late Antonin Scalia.
At the White House, President Trump expressed appreciation for Kennedy’s service and said the process of finding his successor will begin immediately.
Trump noted that when he ran for office, he presented to voters a list of 20 possible Supreme Court nominees and added five names last November, emphasizing they are “in the mold” of Gorsuch.
He said the successor to Kennedy, who was appointed by President Reagan in 1987, will come from that list of 25.
Kennedy, 81, has lined up with the four conservative justices on issues such as campaign finance and gun rights. But he also has sided with the liberal wing on issues such as same-sex marriage, homosexual rights and affirmative action.
Gorsuch has agreed with the court’s most conservative member, Justice Clarence Thomas, 100 percent of the time. The newest justice affirmed his fealty to constitutional originalism at a dinner last November in honor of Scalia.
In the divided cases in which Kennedy and Gorsuch participated in the court’s previous term, they agreed just 38 percent of the time.
Court watchers, noting that since 1971 the average age of retirement for a Supreme Court justice has been just under 79 years, have pointed out that Justice Stephen Breyer will turn 80 in August and Ruth Bader Ginsburg is 85.
When the White House announced five new possible nominees in November, it said in a statement the president “remains deeply committed to identifying and selecting outstanding jurists in the mold of Justice Gorsuch.”
“These additions, like those on the original list released more than a year ago, were selected with input from respected conservative leaders.”
The new names were Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit, Britt C. Grant of the Supreme Court of Georgia, Brett M. Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit, Kevin C. Newsom of Appeals Court for the Eleventh Circuit and Patrick Wyrick of the Supreme Court of Oklahoma.
Barrett was grilled in September during confirmation hearings for her current judicial post by Democratic Sens. Dianne Feinstein of California and Dick Durbin of Illinois regarding her Roman Catholic beliefs on abortion. Sen. Al Franken, D-Minn., who has since resigned due to allegations of sexual harassment, charged Barrett is unfit for the court because she gave a speech to a “hate group,” referring to the religious liberty law firm Alliance Defending Freedom.
When Gorsuch was appointed one year ago, Trump’s short list also included William Pryor of the 11th Circuit Court of Appeals and Judge Thomas Hardiman of the Third Circuit Court of Appeals.
Pryor, WND reported, was criticized at the time by the non-profit Judicial Action Group for “failing to interpret the Constitution as the framers intended” in two important cases. And, the group noted, Pryor lacked support from many conservative leaders who, like Trump, believed that Justice Antonin Scalia’s seat “must be filled with a nominee who has a deep record of commitment to the Constitution.”
Hardiman is seen as a supporter of the Second Amendment and has argued in favor of a county government’s decision to display the Ten Commandments.
Trump’s list of 25 possible Supreme Court nominees:
- Amy Coney Barrett, Court of Appeals for the 7th Circuit (born 1972)
- Keith Blackwell, Georgia Supreme Court (born 1975)
- Charles Canady, Supreme Court of Florida (born 1954)
- Steven Colloton, Court of Appeals for the 8th Circuit (born 1963)
- Allison Eid, Court of Appeals for the 10th Circuit (born 1965)
- Britt Grant, Supreme Court of Georgia (born 1978)
- Raymond Gruender, Court of Appeals for the 8th Circuit (born 1963)
- Thomas Hardiman, Court of Appeals for the 3rd Circuit (born 1965)
- Brett Kavanaugh, Court of Appeals for the D.C. Circuit (born 1965)
- Raymond Kethledge, Court of Appeals for the 6th Circuit (born 1966)
- Joan Larsen, Court of Appeals for the 5th Circuit (born 1968)
- Sen. Mike Lee, R-Utah (born 1971)
- Thomas Rex Lee, Utah Supreme Court (born 1964)
- Kevin Newsom, Court of Appeals for the 11th Circuit (born 1972)
- Edward Mansfield, Iowa Supreme Court (born 1957)
- Federico Moreno, United States District Court for the Southern District of Florida (born 1952)
- Bill Pryor, Court of Appeals for the 11th Circuit (born 1962)
- Meg Ryan, Court of Appeals for the Armed Forces (born 1964)
- David Stras, Court of Appeals for the 8th Circuit (born 1974)
- Diane Sykes, Court of Appeals for the 7th Circuit (born 1957)
- Amul Thapar, Court of Appeals for the 5th Circuit (born 1969)
- Timothy Tymkovich, Court of Appeals for the 10th Circuit (born 1956)
- Don Willett, Court of Appeals for the 5th Circuit (born 1966)
- Patrick Wyrick, Supreme Court of Oklahoma (born 1981)
- Robert Young Jr., former chief justice, Michigan Supreme Court (born 1951)
History of Republican high-court whiffs
Trump appears to be one-for-one in his selection of Supreme Court justices, but other Republicans haven’t fared so well historically.
Republican President Dwight D. Eisenhower is famously reported to have said the two biggest mistakes of his presidency were appointing Earl Warren and William Brennan, leaders of the aggressively liberal court of the 1960s. The selection of David Souter by President George H.W. Bush is another example.
On the current court, the four Democratic-appointed justices – Ginsburg, Breyer, Elena Kagan and Sonia Sotomayor – have been consistently liberal on the bench.
However, of Ronald Reagan’s three appointees – Sandra Day O’Connor, Scalia and Kennedy – only Scalia turned out to be a consistent conservative. George H.W. Bush scored with Clarence Thomas while getting burned by Souter. George W. Bush appointed Samuel A. Alito Jr. and John Roberts, who are part of the conservative wing of the court. But Roberts famously broke with the conservatives on the Obamacare mandate, casting the deciding vote to uphold the largest expansion of federal power in decades.
Marc Thiessen, former chief speechwriter for George W. Bush, asked rhetorically in a 2012 Washington Post column why the Democratic record on Supreme Court appointments is so consistent while the Republican record is so mixed.
He said that for one, the legal and political culture pushes the court to the left.
“Conservatives are pariahs if they vote against the left on certain issues. But if they cross over to vote with the left, they are hailed as statesmen. There is no penalty for voting left, but there is for voting right,” Thiessen wrote.
Another factor, he said, is that liberal Supreme Court nominees “can tell you precisely how they stand on key issues and still get confirmed.”
In her 1993 confirmation hearings, Ginsburg, appointed by Bill Clinton, declared the right to abortion “central to a woman’s life, to her dignity” and was confirmed 96 to 3.
Breyer, another Clinton appointee, declared abortion a “basic right” and was confirmed 87 to 9.
“Imagine if a conservative nominee said the opposite? His or her confirmation battle would be a nuclear war,” Thiessen said.
During his confirmation hearings, Thiessen pointed out Roberts famously compared the role of a judge to that of a baseball umpire whose job “is to call balls and strikes.”
George W. Bush, he said, took that as a promise that “he’s not going to legislate from the bench.”
But when faced with a decision that could sink Obamacare, Roberts, Thiessen said, engaged in “the kind of sophistry we expect from liberals,” effectively redrafting the statute to make the mandate a tax in order to declare it constitutional.
In dissent, Justices Scalia, Kennedy, Thomas and Alito wrote: “To say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. … This carries verbal wizardry too far, deep into the forbidden land of the sophists.”
Thiessen observed that the left “sees the law as a tool of social justice – so they start with the desired outcome and then come up with legal reasoning to justify it.”
“That is what Roberts did: He decided he wanted to uphold Obamacare and rewrote the statute to fit that outcome.”