Although he did not announce his retirement from the U.S.
supreme court at the recent end of the current term,
Associate Justice Anthony Kennedy continues to let it be
known privately, according to numerous reports by those
close to him, that he could retire any time between now
and next year.
Appointed originally to the court by President Ronald
Reagan in 1988, Mr. Kennedy usually sides with the
conservative bloc on the court, but in recent years has
been the critical swing vote in close decisions which are
President Donald Trump’s first appointee. Associate Justice
Neal Gorsuch, has already indicated he will be part of a
conservative majority, as was his predecessor Antonin Scalia.
Mr. Kennedy’s replacement, should he or she be named in the
next year or so, will also likely be a solid conservative choice.
A second sitting associate justice, 84 year-old and ailing Ruth
Ginsburg, might want to retire, but the veteran liberal justice
has made it clear she does not want to give still another
choice to the Republican president who she clearly dislikes
and disagrees with.
But if and when Justice Kennedy retires, it might be a best-case
strategy from Justice Ginsburg’s point of view if she retired at
the same time.
Let me explain. In the confirmation process which accepted
Justice Gorsuch, the senate rules were changed so that a
simple majority could confirm a nominee. Assuming that
President Trump would select a highly qualified conservative
to replace Justice Kennedy, there is little or no realistic hope
that the Democrats could block the choice (although they will
surely try to do so). But if there were two vacancies at the same
time, and one of them were for the Ginsburg seat, the Democrats
would be in a much stronger tactical position to insist that the
second vacancy be filled with a more moderate figure (albeit a
moderate conservative). That “deal” would be that both
nominations would be allowed to sail through the confirmation
Admittedly, Democrats and liberals would prefer one of their
own to replace Justice Ginsburg, but they don’t have the votes to
require this. If Justice Ginsburg holds on past the confirmation
of a replacement to Justice Kennedy, but is forced to retire later
for health reasons (a reasonable possibility today), there would be
no incentive for senate Republicans to confirm anyone other than
a hardline conservative --- thus giving that side a powerful 6-3
majority for a long and indefinite period.
In the contemporary “them vs. us” political environment in
Washington, DC, there are no ideal outcomes for Democrats
in supreme court vacancies. If there were two simultaneous
vacancies in the next year or so, however, there might be some
genuine incentive for Mr. Trump and the Republicans to accept a
“deal” with the Democrats --- and avoid a bitter and prolonged
battle of confirmations.
Given the current partisan mood, it likely won’t happen that way.
Justice Ginsburg is demonstrating her determination to remain
on the court, and the retirement of Justice Kennedy might not
happen as soon as some might think. But, should it happen, it
might also be the best outcome for Democrats, who in 2018 face
the likely increase of the GOP senate majority in the midterm
elections, to have two vacancies to be filled.
Copyright (c) 2017 by Barry Casselman. All rights rederved.