In this NPR story, the headline of which is about how conservative Justice Gorsuch’s votes have been, we learn that Justice Kennedy has not hired law clerks for the term that will begin in October 2018. Moreover, he has let applicants for these clerkship jobs know he is considering retirement.
This doesn’t mean Kennedy will retire before the October 2018 term begins. However, the fact that he’s seriously considering doing so means, as NPR’s Nina Totenberg says, that he’s unlikely to remain on the court for the full four years of the Trump presidency.
One month after the October 2018, the midterm elections will take place. However, if Kennedy were to retire in 2018, he would likely do so shortly after the 2017-18 term ends in June. This would gave Republicans enough time to confirm a replacement before the midterms, and certainly before the new Senate convenes in January 2019.
Assuming the composition of the Senate remains the same as it is now, or becomes more favorable to conservatives, getting a nominee confirmed before the midterms is obviously the correct play.
I’ve heard talk that the Republicans might hold off on confirming a replacement in order to boost turnout in the midterms elections. That would be crazy. A looming confirmation battle would be just as likely to encourage turnout by Democrats as Republicans.
In any event, the Supreme Court is too important to use a pawn to try to elect an extra Republican Senator or two. Although the risk of the GOP losing the Senate in the mid-terms seems small right now — the Dems will have to defend ten seats in states carried by Donald Trump — the GOP cannot assume that risk. With control of the Court, ideologically speaking, at stake, President Trump and the Senate GOP will need to confirm a conservative Justice before the midterms, assuming Justice Kennedy gives them that opportunity.
Kennedy may not. No one outside of a small circle knows how badly (or not) he wants to retire. Few know how he feels about being replaced by strong conservative. No one knows for sure how the battle for the Senate will look in June of next year. Each of these factors, and more, might play into Kennedy’s decision.
But if Kennedy gives Republicans the opportunity to replace him next year, they must seize it. If they don’t, they will deserve to be crushed in the mid-terms.