By Michael D. Shear – THE WASHINGTON POST
- WASHINGTON — Justice Anthony M. Kennedy announced on Wednesday that he will retire this summer, setting in motion a furious fight over the future of the Supreme Court and giving President Trump the chance to cement a conservative judicial philosophy on the American legal system for generations.
A critical swing vote on the sharply polarized court for nearly three decades, Justice Kennedy, 81, embraced liberal views of gay rights, abortion and the death penalty even as he helped conservatives trim voting rights, block gun control measures and unleash campaign spending by corporations.
His replacement by a conservative justice — something Mr. Trump has vowed to insist upon — is certain to reshape the country’s legal landscape and could imperil a variety of landmark Supreme Court precedents on social issues, like abortion, where Justice Kennedy frequently sided with his liberal colleagues.
The ideological shift caused by Justice Kennedy’s departure could leave Chief Justice John G. Roberts Jr., himself a reliable conservative appointed by George W. Bush, as the decisive vote on a court whose other justices may soon include four committed liberals and four die-hard conservatives.
Justice Kennedy delivered a letter of resignation to Mr. Trump Wednesday afternoon, shortly after a half-hour meeting at the White House, where the president called him a jurist with “tremendous vision and tremendous heart.”
“Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises,” Justice Kennedy wrote to Mr. Trump.
The president promised to begin immediately searching for Justice Kennedy’s replacement, saying he will pick from a list of 25 conservative jurists that he had previously identified as candidates for the court’s next vacancy. In comments to reporters, the president said he would pick “somebody who will be just as outstanding” as Justice Kennedy.
Republican control of the Senate, which must confirm the president’s pick for the court, gives Mr. Trump the opportunity to win approval of his choice without any Democratic support. But the Senate’s makeup could change after congressional elections this fall, putting immense pressure on the president and his party to nominate and confirm a justice before November.
Senator Mitch McConnell of Kentucky, the majority leader, called on senators to make sure the president’s nominee will be “considered fairly” without being subjected to personal or character attacks.
“We will vote to confirm Justice Kennedy’s successor this fall,” Mr. McConnell vowed in brief remarks on Wednesday.
But Senator Chuck Schumer of New York, the Democratic leader, demanded that the Senate wait to confirm Justice Kennedy’s replacement until after the midterm elections. Mr. Schumer noted that Republicans delayed consideration of former President Barack Obama’s court nominee in 2016, citing the upcoming presidential election that year.
[Read more on the political battle brewing in the Senate from The Times’s Carl Hulse.]
That Republican tactic effectively handed Mr. Trump his first chance to fill the vacancy created by the death of Antonin Scalia. The move infuriated Democrats who accused Republicans of stealing Mr. Obama’s right to fill a seat on the court.
Mr. Schumer said that senators should not “consider a Supreme Court justice in an election year,” saying that “anything but that would be the absolute height of hypocrisy.”
“People are just months away from determining the senators who should vote to confirm or reject the president’s nominee,” Mr. Schumer said on the floor of the Senate, “and their voices deserve to be heard now as Senator McConnell thought that they deserved to be heard then.”
Justice Kennedy has long been the decisive vote in many closely divided cases. His retirement gives President Trump the opportunity to fundamentally change the course of the Supreme Court.
A Trump appointee would very likely create a solid five-member conservative majority that could imperil abortion rights and expand gun rights.
Justice Kennedy’s voting record was moderately conservative. He wrote the majority opinion in Citizens United, which allowed unlimited campaign spending by corporations and unions, and he joined the majority in Bush v. Gore, which handed the 2000 presidential election to George W. Bush. He also voted with the court’s conservatives in cases on the Second Amendment and voting rights.
But Justice Kennedy was the court’s leading champion of gay rights, and he joined the court’s liberals in cases on abortion, affirmative action and the death penalty.
In April 2017, Mr. Trump formally appointed Justice Neil M. Gorsuch to succeed Justice Antonin Scalia, who died in February 2016, replacing one conservative justice with another and maintaining the basic balance of power on the court.
The replacement of Justice Kennedy with a reliable conservative would be far more consequential and would move the court markedly to the right.
The bitter 14-month battle over Justice Scalia’s seat, during which Republican senators refused to consider President Barack Obama’s nomination of Judge Merrick B. Garland, will most likely pale in comparison to the coming fight over Justice Kennedy’s seat.
