As the Supreme Court moves into the home stretch of its term, speculation intensifies over Justice Kennedy’s intentions. Will the Court’s lone centrist retire at the end of the term?
For Justice Kennedy, it must be a case of mixed emotions. Indications are that he would like to escape the burdens that his job places on a man of 80 years. Yet, the ability to shape national policy as the “swing vote” on the Supreme Court likely still holds considerable allure.
Kennedy surely is aware that his likely replacement, if he retires now, will be a jurist considerably to his right. However, he also understands that postponing retirement won’t help produce a centrist Justice down the road. If he waits a year of two, President Trump will nominate a conservative replacement and, barring an unexpected twist to the mid-term Senate elections, see that nominee confirmed.
If Kennedy waits until a Democrat is elected president, his replacement would be a left-wing judge, not a centrist. There’s also the possibility of another Merrick Garland style stalemate. That would mean only eight Justices. Neither scenario likely appeals to Kennedy.
If Justice Kennedy resigns this year, will President Trump pick his replacement from the same list he used to pick Neil Gorsuch? The Washington Times reports, based on an interview with the president, that Trump will do so.
In response to the direct question of whether he would pick from that list, the president responded: “Yes, that list was a big thing.” It was, indeed, and Trump has profited both from putting it out and from using it to select Justice Gorsuch. Thus, it’s not surprising that he intends to stick with it.
The list excludes two high quality candidates — Judge Brett Kavanaugh and former Solicitor General Paul Clement. Their sin? They work in Washington, D.C., aka “the swamp.”
It seems unfair that neither Kavanaugh nor Clement apparently will be considered if/when Justice Kennedy steps down. But there is an abundance of quality jurists on the list, so conservatives need not mourn their exclusion.
In his interview with the Washington Times, Trump said he has no inside knowledge as to whether Kennedy will step down:
I don’t know. I have a lot of respect for Justice Kennedy, but I just don’t know. I don’t like talking about it. I’ve heard the same rumors that a lot of people have heard. And I have a lot of respect for that gentleman — a lot.
There’s some irony in this comment. As a candidate, Trump trashed Chief Justice Roberts (by way of trashing Ted Cruz for backing Roberts’ nomination). Yet, Roberts is considerably more committed to the kind of Constitutional interpretation Trump nowadays espouses than Kennedy is.
Trump, though, has cultivated good personal relations with Kennedy. Politico reports:
As [Trump] made his way to the front of the House chamber [for his address to Congress], he shook hands with Justices Elena Kagan, Stephen Breyer, Sonia Sotomayor and Chief Justice John Roberts. But Trump stopped to talk to Kennedy about their children who live in New York.
“Thank you, that’s very nice coming from you. Say hello to your boy. He’s a special guy,” Trump said.
“Your kids have been very nice to him,” Kennedy responded.
“Well they love him in New York,” Trump said.
Kennedy reciprocated by inviting Ivanka Trump to the Supreme Court as his guest. During oral argument, she and her daughter sat in the most exclusive section of the courtroom, in seats usually reserved for the justices’ family and special guests.
In addition, in selecting Neil Gorsuch, Trump placed a former Kennedy clerk on the Supreme Court. This may also have helped the relationship between the president and the “swing” Justice.
Nonetheless, one can imagine Justice Kennedy being put off by some of Trump’s more flamboyant comments about judges. Indeed, Gorsuch was put off by them.
The important point, though, is that Kennedy has nothing to gain, from the point of view of who will succeed him, in waiting to retire. The decision likely comes down to his weighing of the joys of retirement vs. the satisfaction of making so much difference in public affairs.