The legal and political impact of Justice Kennedy’s retirement

Jun 28, 2018

Neil Gorsuch Is Sworn In As Associate Justice To Supreme Court

WASHINGTON, DC – APRIL 10: U.S. Supreme Court Associate Justice Anthony Kennedy delivers remarks at the White House in Washington, DC. (Photo by Chip Somodevilla/Getty Images); Credit: Chip Somodevilla/Getty Images


Justice Anthony Kennedy announced Wednesday that he is retiring from the U.S. Supreme Court. His decision to leave will allow President Trump to nominate a replacement that can solidify a 5-4 conservative majority.

For more than three decades, Justice Kennedy served as a vital swing vote in several cases, including abortion and same-sex marriage. Now, President Trump will move forward in nominating a replacement.
The President said yesterday that he’ll choose from a list of 25 prospects released last November. The President’s staff consulted with the conservative Heritage Foundation to compile the list. Given the filibuster is dead for Supreme Court confirmations, there’s nothing now Senate Democrats can do to stop the President’s choice.

However, Democrats claim it’s hypocritical of Republicans to confirm Trump’s nominee before the results of the November midterm elections. They claim the same principle should hold as when the GOP held off on a confirmation vote for President Obama’s nominee to Justice Scalia’s seat – Merrick Garland. Republicans said the then-upcoming Presidential election needed to take place before a new justice was confirmed. Republicans counter that they’re entirely different circumstances, with the nominee changing based on the incoming President. Trump wouldn’t necessarily change his choice based on which party controls the Senate.

Of the 25 candidates, will it be the runner-up to Trump’s last nominee, Neil Gorsuch? That would be Thomas Hardiman of the 3rd circuit court of appeals. What about Utah Senator Mike Lee? Or Senate Majority Leader Mitch McConnell’s favorite, Amul Thapar, also a federal judge?


John Eastman, professor law and community service and director of the Center for Constitutional Jurisprudence at Chapman University 

Michael Dorf, professor of law at Cornell University and co-author of the book, “The Oxford Introductions to U.S. Law: Constitutional Law” (Oxford University Press 2010)

Sean T. Walsh, Republican political analyst and partner at Wilson Walsh Consulting in San Francisco; former adviser to California Governors Pete Wilson and Arnold Schwarzenegger and a former White House staffer for Presidents Reagan and H.W. Bush

Rep Adam Schiff, Democratic congressman representing California’s 28 Congressional District, which includes Burbank, parts of Pasadena and Glendale

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