The rumor mill has gone into high gear of late when it comes to Supreme Court Justice Anthony Kennedy, the center square on the SCOTUS game show who regularly acts as the tiebreaker between the conservative and liberal wings of the court. A few months ago, Dean Heller began suggesting to Nevada voters that Kennedy’s retirement was imminent, and wouldn’t they want a Republican-controlled Senate to confirm his replacement? The GOP picked it up as a theme for the Senate midterms, more so when generic ballots signaled the kind of blue wave that might swamp out their 26-9 advantage in November. Now that the polls are showing a resurgent Republican enthusiasm, one might think that Republicans would turn to other matters, although the Left isn’t ready to stop lobbying Kennedy to stick around a few more years.
Today, however, Sen. Mike Lee (R-UT) told our colleague Guy Benson and Marie Harf on their Fox Radio Network show Benson & Harf that he believes Kennedy wants to retire in time to allow a Republican to pick his replacement. Lee disclaims any personal knowledge of Kennedy’s plans but says “there is a lot of chatter” about his retirement. And considering that Lee is on Donald Trump’s short list for possible SCOTUS replacements, that may raise a few eyebrows:
GB: What are you hearing, with your ear to the ground, about what may or may not happen with Justice Kennedy — if you’re willing to comment on that? And if you believe that there might be a vacancy forthcoming, what’s the mood among your Republican colleagues in the Senate about the urgency about moving forward with a confirmation process prior to the election?
Sen. Mike Lee (R-UT): Great question. I have, uh, no conclusive evidence one way or another as to what’s going to happen. There is a lot of chatter suggesting that Justice Kennedy might be preparing for retirement as soon as this year…Sometime between now and the end of June or first day or two of July would be when we would expect an announcement from Justice Kennedy if he were going to do it. What I am hearing is that he is at least considering it and that it’s a very real possibility. What I also heard is that having been appointed by President Reagan back in the late 1980’s, he considers himself a Republican and with all things being equal would prefer to be replaced by a Republican President. As to the part of your question about how question it would be to move right toward it: There’s nothing more important that we could be doing other than that…It should be something that we jump right onto and something we certainly should complete before we get into the election cycle…nobody knows what’s going to happen in that election, and if President Trump ends up having the chance to nominate someone to the Supreme Court, we need to get that nominee confirmed.
Is that just political analysis, or a pointed message aimed at Kennedy? Lee’s status as a short-lister could give the impression of the latter, perhaps hinting to Kennedy that he should feel this way. Lee demurred on an appointment when he was first added to the list, and it was noted at the time that he wasn’t exactly a big Trump booster. That was then, however, and this is now. Supreme Court opportunities do not come around often.
This doesn’t really move the ball much either way, though, and it seems very doubtful that anyone other than Kennedy really knows what’s going on in his mind. For one thing, Kennedy hired four clerks for the next term already. That isn’t entirely dispositive, as David Lat explains at Above the Law, but certainly indicates some willingness to serve for another year. Another issue is the impact of all the speculation. Has it offended Kennedy enough to become more determined to stick around? History shows that Supreme Court justices don’t like the idea of being pushed off the bench; as Tony Mauro pointed out a week ago, “hinting that it is time to go seems to stiffen justices’ resolve to stay.” Remember when the Left convinced Ruth Bader Ginsburg to step down during Obama’s term? No? Exactly.
Besides, even if Kennedy wants a Republican to replace him, Trump will be around for two more Supreme Court sessions. At the moment, it appears that the GOP will hold enough seats through both to easily confirm his replacement, so what’s the rush? And even if Democrats managed to win control of the Senate after the midterms — a very long long-shot bet — I’m not certain that would bother Kennedy either. Trump would then have to negotiate an appointment with a Democratic majority, which would result in a more centrist appointment. Given Kennedy’s track record over the last twenty years, do we really think he’d retire early on the chance to avoid that outcome?