The retirement announcement of Associate Justice Anthony Kennedy quickly ushered in guessing games on whom President Trump would next nominate to the Supreme Court and how long Roe v. Wade and other rulings would survive.
Kennedy, long the high court’s swing vote on controversial decisions, told Trump in a letter Wednesday (June 27) after the final opinions of the term were announced that his retirement as an associate justice would take effect July 31. He served 30 years on the court after his nomination by President Reagan and his Senate confirmation.
Trump commended Kennedy for his service and said a search for the next justice “will begin immediately.” His nominee will come from a list of 25 names the White House released last November, he told reporters June 27.
The Senate will vote to confirm the nominee this fall, Majority Leader Mitch McConnell of Kentucky said from the floor June 28. Democrats and liberal advocacy organizations have already signaled they will fight any nominee from Trump’s list.
While defenders of abortion rights and other causes predicted doom will ensue if another Trump nominee like Neil Gorsuch is confirmed, some evangelical and conservative leaders expressed hope for a type of justice who might be forthcoming without predicting who it would be.
“The present vacancy comes at a critical moment, as Christians increasingly find themselves having to defend the most basic of American freedoms in courts of law,” said Andrew Walker, director of policy studies for the Ethics & Religious Liberty Commission (ERLC).
“President Trump has an opportunity to nominate a jurist who sees his or her job as an opportunity to interpret the Constitution as it is, not as one wants it to be,” said Walker. “Our country needs a judge on the Supreme Court, not someone who discovers illusory rights in it.”
Michael Farris, president of Alliance Defending Freedom, said in a written statement his organization looks forward to a nominee “who will uphold the First Amendment and the original public meaning of the Constitution.”
Trump’s list — which has six women and three minorities among its 25 potential nominees — “includes the best and brightest of our federal and state judges,” said Carrie Severino, chief counsel to the Judicial Crisis Network, in a post for National Review. “They all have judicial records of listening to the arguments of both sides in the courtroom, delivering well-reasoned decisions, and fairly applying the law with a scrupulous adherence to the Constitution.”
Ed Whelan, president of the Ethics & Public Policy Center and a close observer of the nomination process, predicted Trump would name a nominee before the end of July. A Senate confirmation vote could take place by mid-September so a new justice would be on the court when it opens its next term Oct. 1, Whelan wrote at National Review.
The Senate — which changed its rules before approval of Gorsuch in 2017 — requires only a majority vote to confirm a nominee to the Supreme Court. Republicans hold a 51-49 majority, with Vice President Mike Pence the tie-breaking vote if needed. Without any Democratic votes, they could confirm the nominee as long as they lose no more than one of their own party members.
ERLC President Russell Moore and Farris both acknowledged Kennedy’s legacy is a mixed one. He provided important votes and sometimes opinions in defense of freedom of religion and speech, but he also offered critical support for abortion rights and same-sex marriage.
Advocates for abortion rights especially expressed despair about another nomination from Trump and confirmation by the Senate.
“Abortion will be illegal in twenty states in 18 months,” tweeted CNN Senior Legal Analyst Jeffrey Toobin shortly after Kennedy’s retirement was announced.
Nancy Northrup, president of the Center for Reproductive Rights, said the retirement was “devastating news.”
“The stakes of the coming nomination fight are extraordinary,” she said in a written statement. “The future of reproductive rights is on the line.”
Confirmation of a fifth conservative to the high court does not assure reversal of the 1973 Roe decision that legalized abortion throughout the country. Associate Justice Clarence Thomas is the only current member of the Supreme Court who has called for overturning Roe in a written opinion. The other conservatives are Chief Justice John Roberts and Associate Justices Samuel Alito and Gorsuch.
If Roe is reversed, abortion would not be outlawed nationally. The question of abortion’s legality would return to the states, which had jurisdiction before the high court invalidated all abortion restrictions in its 1973 ruling.
In the case of a reversal, the right to abortion would be “at the highest risk of loss” in 23 states, according to the Center for Reproductive Rights. Abortion rights would appear to be secure in 19 states, the center reported earlier this year.
Trump’s list of possible nominees with their current places of service are:
Amy Coney Barrett, U.S. Seventh Circuit Court of Appeals; Keith Blackwell, Georgia Supreme Court; Charles Canady, Florida Supreme Court; Steven Colloton, Eighth Circuit Court; Allison Eid, 10th Circuit Court; Britt Grant, Georgia Supreme Court; Raymond Gruender, Eighth Circuit Court; Thomas Hardiman, Third Circuit Court; Brett Kavanaugh, District of Columbia Circuit Court; Raymond Kethledge, Sixth Circuit Court; Joan Larsen, Sixth Circuit Court; Mike Lee, U.S. Senate from Utah; Thomas Lee, Utah Supreme Court; Edward Mansfield, Iowa Supreme Court; Federico Moreno, U.S. District Court, Florida; Kevin Newsom, 11th Circuit Court; William Pryor, 11th Circuit Court; Margaret Ryan, U.S. Court of Appeals for the Armed Forces; David Stras, Eighth Circuit Court; Diane Sykes, Seventh Circuit Court; Amul Thapar, Sixth Circuit Court; Timothy Tymkovich, 10th Circuit Court; Robert Young, Michigan Supreme Court, retired; Don Willett, Texas Supreme Court; and Patrick Wyrick, Oklahoma Supreme Court.
Women on the list are Barrett, Eid, Grant, Larsen, Ryan and Sykes. Minorities among the 25 names, The Louisville Courier-Journal reported, are Thapar, South Asian American; Moreno, Hispanic American; and Young, African American.
— by Tom Strode | BP