Consider this one of the worst-kept secrets in a place known for being worst at keeping secrets. Senate Judiciary chair Chuck Grassley made it a little more public on Tuesday at an event in Muscatine, Iowa. Grassley told the audience at Kent Corporation that he expects to get the gang back together again this summer to consider a new nominee for the Supreme Court following a resignation”
During a visit to Muscatine Tuesday morning, U.S. Sen. Chuck Grassley, R-Iowa, the chairman of the Senate Judiciary Committee, said he expects a Supreme Court Justice resignation within the year.
“I would expect a resignation this summer,” he said.
Gee, whomever could he mean? For the past few weeks, rumors have swirled around Washington that swing-vote Justice Anthony Kennedy wants to hang up his robe and ride off into the sunset. He hasn’t interviewed prospective clerks for the next session, and has moved up his traditional five-year summer reunions for past clerks up a year. The New York Times speculated at the end of January that Donald Trump’s nomination of Neil Gorsuch was intended in part to signal to Kennedy that Trump would replace him with a serious jurist.
So yes, people have been reading these tea leaves for a while, but it’s one thing to read tea leaves. It’s another entirely when the Senate Judiciary chair tells you to keep your calendar open. ABC’s Jon Karl noticed the “hint in a small Iowa newspaper” this morning:
Karl expect the next confirmation battle to be much more hard-fought, as Kennedy’s retirement would potentially change the balance of the court. That may be true in terms of public relations and rhetorical vehemence, but only marginally. Opponents of Gorsuch demonized him to the maximum extent possible, even throwing specious charges of plagiarism at him at the end, so it’s tough to see how much more hard-fought another confirmation battle might be. And besides that, Democrats tossed away the little leverage they had against Gorsuch. They can yell and stamp their feet, but they can’t stop Republicans from confirming the next nominee unless Republicans don’t find him or her acceptable. Don’t say we didn’t warn you.
Grassley had some thoughts about a potential replacement, too:
A person would likely be nominated from the same list from which recently appointed Justice Neil Gorsuch was chosen, Grassley said, most of whom he said are well-qualified.
“I don’t know about racial and ethnic divisions, but there’s some very good females on there that would make good Supreme Court Justices as well,” he said.
Trump’s initial list of potential Supreme Court nominees included Dianne Sykes of the 7th Circuit Court of Appeals, and state supreme court justices Allison Eid of Colorado and Joan Larsen of Colorado. A subsequent list included Margaret “Meg” Ryan, who has served for more than ten years on the US Court of Appeals for the Armed Forces. Some presume that Trump will wait until Ruth Bader Ginsburg retires to nominate one of these candidates, but why? Especially coming after the poisonous exchanges in the Gorsuch hearing, it might be better to choose one now and see how anxious Democrats will be to throw mud at a woman.
The bottom line is that we’ll be busy this summer, and by early September at the very latest. Mark your calendars, and don’t take a vacation after Labor Day.
As I noted in my attempt to handicap the Trump shortlist, it’s likely that President Trump with get more than one SCOTUS appointment. On inauguration day, Justice Ginsburg will be 83, Justice Kennedy will be 80, and Justice Breyer will be 78. One or more of them might want to retire in the next few years.
But don’t count on anyone retiring from the Court this Term or next (various rumorsnotwithstanding). All nine justices have hired four law clerks apiece for October Term 2017, which is a good sign that they’re planning on sticking around, at least through the end of OT 2017 in June 2018. As we’ve explained before, “Retired justices get just one clerk each while active justices get four, and justices with retirement on their minds typically hire just one clerk until they’re sure they’ll be sticking around.”
Justice Anthony M. Kennedy was the last to hire up, and the final clerk hired by AMK was Geoff Shaw (Yale 2016 / Reinhardt). Since he’s the last clerk to be revealed, we will, consistent with our little tradition here at ATL, give him more detailed coverage than the other clerks. (This is the SCOTUS clerk version of the NFL draft’s Mr. Irrelevant.)
Love the NFL reference, and it’s a tea leaf to keep in mind.