A noteworthy tease, and not just because it gave people on Twitter an excuse to do another round of “Zodiac” jokes at Cruz’s expense.
Does Cruz know something? The way he talks here about playing “defense” with Scalia’s seat and the left going ballistic over the second vacancy suggests that he thinks the next seat to open up won’t come from the Court’s conservative wing. That leaves three obvious possibilities: Ginsburg, Breyer, and Kennedy, the youngest of whom is 78. Cruz wouldn’t be in a position to know Ginsburg’s or Breyer’s plans, though. If either was planning to retire and that information had somehow traveled from the far left of the Supreme Court to the far right of the U.S. Senate, where Cruz might hear about it, surely many other people would have gotten wind of it by now and begun leaking it already.
He’s talking about Kennedy here, surely, and not without reason. Rumors of his impending retirement have been floating around since the election, most notably in John Fund’s story for National Review three weeks ago after Gorsuch was nominated.
“Those who know Kennedy wouldn’t at all be surprised if he retired this June. He is at the apex of a 29-year-career on the Court and has made his mark,” one former clerk told me. “In addition, it’s no secret that at age 80 he is slowing down a bit and I’d say it’s more likely than not he will leave at the end of this year’s term in June.”
Other clerks agree. “I would put it at 50–50 that he leaves at the end of the term,” a former Kennedy clerk told the Washington Post. Senator Orrin Hatch, a former chairman of the Judiciary Committee, agrees that the Gorsuch appointment might convince Kennedy that his successor on the Court will be someone he respects. “He might feel like it’s time to retire, too, because he’s talked about that a few times,” Hatch told the New York Times.
The lawblog Above The Law published an intriguing analysis a few days after the election of various tea leaves pointing to a Kennedy retirement. He’d only hired one clerk for the coming term at that point; his usual five-year reunion for his clerks, which was scheduled for 2018, had been mysteriously moved up to 2017; and Kennedy hadn’t taught abroad the past summer as he usually does. A spokesman for the Supreme Court replied with innocent explanations for each of those things. Family plans had overtaken Kennedy’s usual summer teaching job and the clerk reunion had been moved up to coincide with his 80th birthday. As for hiring clerks, he reportedly did end up bringing on a full contingent in the following months. All of that points to him staying for a bit longer, but who knows? It’s not hard to imagine Kennedy telling one of his former clerks in casual conversation that, say, he’s leaning 60/40 towards retirement at the moment and that information making its way to Cruz through the conservative legal grapevine. There may be something to this clip.
Big question: If there is, who’s the nominee? Will Thomas Hardiman retain his place in line as the next man in or will Trump pass him over for a woman? Fund offered a clue on that too:
If Justice Kennedy should retire soon or in a year or two, the general consensus among Trump aides is that the seat is likely to go to a woman. “A vacancy created by Kennedy would be fraught with symbolism that the Court could really move in a more conservative direction,” one aide told me. “Democrats will be under enormous pressure from their base to fight the Trump nominee to the death. A highly qualified woman with a compelling life story would help.”
Fund named four leading women candidates in his possibilities. I’d keep an eye on Margaret Ryan, who currently sits on the U.S. Court of Appeals for the Armed Forces. She served in the Marines for four years and then ended up clerking for conservative superstars Michael Luttig and Clarence Thomas. If Team Trump is worried about confirmability and Democratic filibusters, a woman veteran is about as strong a pick as he could make. And given her conservative judicial pedigree, I assume Ryan would prove acceptable to most of the right. The only catch: She goes by “Meg,” apparently, so we’d all have to get used to having a Supreme Court justice named, er, Meg Ryan. Beats Justice Tom Hanks, I guess.