Single Retirement May Change Balance of Power on the Supreme Court

Justice Anthony Kennedy has announced his retirement, effective July 31. “For a member of the legal profession it is the highest of honors to serve on this Court,” he wrote. Kennedy has served on the 9th Circuit and the Supreme Court combined for roughly 43 years. Since 2006, when Justice Sandra Day O’Connor retired from the Court, Kennedy has been the swing vote, often casting the deciding vote in several high-profile cases.

Shortly after Kennedy’s announcement, President Trump thanked Kennedy for his service and indicated to reporters that he would move “immediately” to choose a nominee from a list of 25 potential individuals assembled for the purpose of filing the seat vacated by the death of Justice Antonin Scalia. Trump ultimately chose Neil Gorsuch, whose nomination and subsequent confirmation was one of the signature accomplishments of his first year in office.

If the nomination process of Gorsuch is any indication, the fight to replace Kennedy will be long and bitter. Despite Senate Democrats’ best efforts during Gorsuch’s nomination process—including attempting to deploy a filibuster—Gorsuch was confirmed via a simple majority after Republicans deployed the “nuclear” option. This option was used in 2013 by Senator Harry Reid for all judicial and cabinet-level nominations when the Democrats controlled the Senate. This set the precedent for allowing certain nominees to be confirmed by a simple majority in the Senate.

With the upcoming midterm elections, both Democrats and Republicans will seek to rally their respective bases as the nomination process of Kennedy’s successor moves forward. Many Democrats remain upset about Judge Merrick Garland not being given a confirmation hearing. In fact, Senator Dick Durbin has stated that he believes the Senate should wait to consider Trump’s nominee until after the new Congress is seated in January of 2019 and cited Senator Mitch McConnell’s refusal to consider Garland as a reason.

Despite Trump’s desire to have his nominee be within the mainstream of legal conservatism, there have been instances of nominees being more liberal than imagined by the president at the time of their nomination. For example, former Justice David Souter, whom President George H.W. Bush expected to be a dependable conservative, did not materialize as such. In addition, Republican President Dwight D. Eisenhower allegedly said the two biggest mistakes of his presidency were appointing Earl Warren and William Brennan, who were both leading influences behind the liberal court of the 1960s. However, if Trump’s nominee has a similar judicial philosophy to Justice Gorsuch, they likely would be a reliable conservative and would shift the balance of the Court.

Like his predecessor Barack Obama, Trump will have two Supreme Court picks within his first two years in office. Ultimately, Kennedy’s retirement may result in the Court being more firmly conservative for years or potentially generations.