The Anthony Kennedy retirement watch may be dead for 2017, but it will return next year with a vengeance. The moment for an announcement came and went with the Supreme Court’s wrap-up of its 2016-17 term, and the cert grant for Masterpiece Cakeshop all but guarantees that Kennedy will want to hold onto his center-of-the-court seat to ensure his Obergefell decision does not get watered down.
After that, though, all bets are off. NPR reported over the weekend in a profile on Kennedy that he warned applicants for clerk positions that may not be around for the 2018-19 term — meaning that his retirement could come shortly before the midterm elections:
As an institutional matter, he could well have concluded that there had been enough uncertainty and drama on the court after the death of Justice Antonin Scalia, and the vacancy that lasted for well over a year with Senate Republicans refusing to even consider President Obama’s nominee.
Kennedy may also have thought it best to ensure that there is a full complement of nine justices for at least a year. He could even have been put off by President Trump’s tweets about the judiciary.
But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.
Rick Hasen notes that this could cut both ways for Republicans if Kennedy follows through:
This would put Justice Kennedy’s retirement right before the 2018 midterms, giving the Republican base reasons to turn out and keep the Senate with a Republican majority (already a strong possibility in 2018). …
Republicans in the Senate would have a strategic decision to make: try to confirm a replacement before the elections, or use it as a tool to boost midterm turnout.
That would certainly spice up what already looks like a spicy enough midterm cycle. One would presume, however, that Kennedy would retire not in October, when the term starts, but most likely at the end of the 2017-18 term in late June or early July. Why spend the summer preparing to return only for a few weeks? If that’s the case, then Donald Trump would face significant pressure to appoint a new justice in time for Senate Republicans to confirm him/her before the start of the new term. That might remind everyone of the need to keep and extend control of the Senate, but the urgency of doing so would be lost.
Let’s say for argument’s sake that Kennedy decided to announce his retirement on the first Monday in October at the start of the new term. That would hand a powerful campaign argument to Republicans — and maybe to Democrats too, but only in states where they’re expected to win anyway. It would galvanize red-state voters where incumbent Democrats already face an uphill struggle to hold onto seats where voters elected Trump last year by shifting the issue from the incumbents themselves (and Trump) and to the more potent issue of long-term judicial direction.
That, however, is why it’s difficult to imagine Kennedy playing along with this plan. He’s carefully built a reputation as the center of the Supreme Court; does he want to toss decades of work on that legacy away for a stunt to help the GOP win seats they should win anyway in one election? Doubtful. If Kennedy retires at the end of the term, Republicans would have to decide whether they want to look outrageously manipulative by letting the next court term start shorthanded, or just use a successful confirmation of another solid conservative to the court speak for itself in the midterms — if Kennedy plans to retire at all. And do we really know that at all?