One facet of the upcoming midterm elections has revolved around something potentially taking place back in Washington. It’s the question of whether Supreme Court Associate Justice Anthony Kennedy will be retiring this summer. Frankly, I’ll believe it when I hear it from the man himself, but at the same time I wouldn’t rule it out entirely. One reason to suspect the rumors may be true comes down to little more than timing. As One News Now reports this week, the Judicial Action Group sees a Kennedy exit as more likely than not based on nothing more than tradition.
Phillip Jauregui, president of Judicial Action Group, a 501(c)4 non-profit organization working towards judicial renewal and an agenda to address judicial activism, thinks Kennedy will retire soon.
“I think Justice Kennedy would like to follow tradition, and that is a justice leaves during a presidential administration of the same party that appointed him,” Jauregui tells OneNewsNow.
Kennedy, currently the longest-sitting justice on the court (30 years), was nominated by President Ronald Reagan and began his service on the high court in February 1988. He is the only current justice to be confirmed by a unanimous vote in the Senate.
So the tradition in question suggests that since Reagan nominated Kennedy, he would exit this year to ensure that another Republican nominates a replacement who is ideologically aligned with the departing justice. Does Kennedy like Donald Trump or particularly care which Republican makes the nomination? After the last election some observers interpreted his comments about political debate “becoming too coarse” to have been a veiled shot at Trump, but for the most part, he’s been admirably silent on partisan matters and stuck to doing his job. Plus, the guy is more than eighty years old and it wouldn’t be shocking for him to be thinking of retirement.
But why now? He’s got more than two and a half years at least, right? One other part of the JAG analysis is a bit more chilling on that point. (Emphasis added)
“The problem is right now Republicans only have 51 Senate seats,” Jauregui continues. “If they lose control of the Senate in the elections this coming November, then Kennedy wouldn’t be able to leave because it’s almost certain that Democrats would not confirm any Supreme Court nominee as payback for what the Republicans did during in the last year of President Obama’s administration.”
Frankly, I think that talk of the GOP losing the Senate Majority Leader’s office is somewhat premature to say the least. (And I’m not the only one.) But let’s say that the Democrats somehow manage to hold on to the more than two dozen seats they are defending and flip a couple of GOP states and put Chuck Schumer in the Majority Leader’s office. Could that really be true? Do you think that the Democrats would really begin a moratorium on approving Trump’s SCOTUS nominations two full years before the next presidential inauguration?
Of course, as soon as I finished typing that sentence I realized the answer. Of course they would. And they would cite Merrick Garland as the rationale for the decision. But then all bets are off. If that becomes the precedent, then every president from here on out will have to maintain control of the Senate by their own party from day one or there will be no more seats filled. Everyone in the opposition party will be able to say that it simply wouldn’t be fair to appoint a new SCOTUS justice now, without knowing what the voters may decide three years and nine months down the road.
With all that in mind, I would offer one other observation. Even if the GOP maintains control of the Senate and seats a replacement for Kennedy (assuming he’s seriously considering retiring), there’s a larger problem looming on the horizon and I don’t see any possible resolution for it.