There have been rumors about Justice Kennedy’s possible retirement since at least last May when CNN reported that “friends and associates” believed he was seriously considering it. Those rumors died down a bit in December when Kennedy hired clerks through the end of 2018. But earlier this month Sen. Dean Heller predicted Kennedy’s retirement was imminent saying, “Kennedy is going to retire around sometime early summer.”
Sen. Heller admitted at the time that he was hoping Kennedy’s retirement would help fire up the GOP base and maybe help save his own seat. Today, the Hill reports that the rumors about Kennedy’s retirement are now becoming something more like polite suggestions from some unnamed members of the GOP Senate:
“He’s a Republican, his wife’s a Republican, his kids are Republican. You’d think he’d want his successor to be appointed by a Republican president,” said one GOP senator who requested anonymity to speak candidly…
“The only reason we won the White House and kept the Senate was because of that open Supreme Court seat,” the lawmaker added, referring to the vacancy following Scalia’s death…
A separate GOP senator told The Hill that confirming another conservative justice to the court would give Senate Republican candidates another solid accomplishment to run on in the midterms.
“It would be helpful if he made this the cap of his career,” the lawmaker said of Kennedy. “It would be very helpful to appoint another Neil Gorsuch on the court for the next decade.”
The Hill doesn’t identify the Republican Senators who are saying this but does indicate that this is not all coming from Sen. Heller. Meanwhile, a couple of Senators went on the record saying they aren’t pushing for Kennedy to retire. But even these rebuttals sound like thinly-veiled suggestions:
Senate Republican Whip John Cornyn (Texas), another member of the Judiciary Committee, said it “would be presumptuous of me to tell Justice Kennedy what to do.”
“He’s a smart guy. He’ll figure that out,” he added. “Obviously it’s easier to manage when we’re in control of the process as the majority.”
Hint, hint. The message here seems to be, “Don’t mess this up, Kennedy.”
There are a couple way to read this. One is that Senate Republicans are getting nervous about their chances of holding the chamber this fall. Polls indicate that Democrats are more motivated to go to the polls right now than GOP voters. Plus the GOP edge in the Senate is razor thin, especially with Sen. McCain on the sidelines. The one thing the GOP really has going for them, as we’ve discussed here before, is the electoral map which finds Democrats defending 26 seats including 10 in states where Trump won. So the left is motivated but they’re also playing defense this election.
Another way to look at this, as Sen. Heller suggested, is that a fight to replace Justice Kennedy with a solid conservative really would be a solid win for the GOP, even more so than the confirmation of Judge Gorsuch since Kennedy is often the swing vote in 5-4 decisions. Granted, this fight could get Democrats even more worked up (thought it could also demoralize them) but it would certainly get the GOP fired up as well. As an issue, it would also use up a lot of oxygen that would otherwise go to issues like gun control and the future of Obamacare that Democrats would rather focus on.
GOP Senators seem eager to get Justice Kennedy thinking about all of this before it’s too late. In a sense, Kennedy’s decision about when to retire could wind up being his most important swing vote.