The next Supreme Court nominee

Rumor has it that Justice Anthony Kennedy is seriously considering retiring from the Supreme Court at the end of this term. As the Supreme Court’s swing vote (once Neil Gorsuch is confirmed), Kennedy would regain his status as arguably the second most powerful person in America. That’s not something one gives up lightly.

Nonetheless, one of his former clerks told John Fund:

Those who know Kennedy wouldn’t at all be surprised if he retired this June. He is at the apex of a 29-year-career on the Court and has made his mark. In addition, it’s no secret that at age 80 he is slowing down a bit and I’d say it’s more likely than not he will leave at the end of this year’s term in June.

Another former clerk puts the odds of Kennedy retiring at 50-50. And Sen. Orin Hatch believes Kennedy “might feel like it’s time to retire, too, because he’s talked about that a few times,”

Rumors of an imminent Kennedy retirement send shivers down the spine of liberals. The Washington Post’s Ruth Marcus recently wrote a column called “If you’re reading this, Justice Kennedy, please don’t retire.” That’s pretty please with a cherry on top.

According to Fund, the White House is already preparing to fill a second Supreme Court vacancy. He finds a consensus among Trump aides that the seat is likely to go to a woman. One aide explains:

A vacancy created by Kennedy would be fraught with symbolism that the Court could really move in a more conservative direction. Democrats will be under enormous pressure from their base to fight the Trump nominee to the death. A highly qualified woman with a compelling life story would help.

Fund identifies four female candidates and provides a brief sketch of each, including possible drawbacks. The four are Diane Sykes ( a favorite of mine), Allison Eid, Joan Larsen, and Margaret Larsen.

I have suggested that the Gorsuch confirmation process might have an impact on the selection of Trump’s next Supreme Court nominee. If the Democrats filibuster Gorsuch, the Republicans will likely abolish the filibuster via the “Reid option.” If so, the Trump administration might feel more free to nominate a hard core conservative because it won’t have to worry about fallout from invoking the Reid option. That fallout will already have been experienced.

The administration nonetheless might feel constrained by knowing that the Democrats will fight the second nominee even harder than it fought Gorsuch because the second nominee might create a true conservative majority. The nomination of a hard core conservative who just happens to be female might make sense in this context.

A Democratic filibuster of Neil Gorsuch could be viewed as the best of all possible worlds. First, it would likely lead to abolition of the filibuster. Second, it would mean that some Democrats from Red States who face reelection in 2018 have to go on record as opposing and obstructing an attractive, highly-qualified Supreme Court.

On the other hand, conservatives want Gorsuch on the Court as soon as possible. The urgency of getting him confirmed was reinforced by the fate of President Trump’s executive order on immigration at the hands of the strange judge from Washington State and the Ninth Circuit Court of Appeals.

The phrase “wheels within wheels” comes to mind.


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