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Justice Kennedy's Retirement From The Supreme Court: Answers To Your FAQs

What does the pivotal justice's retirement mean for the Supreme Court -- and for the nation?

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Justice Anthony M. Kennedy

We’re all still trying to process the huge news of Justice Anthony M. Kennedy retiring from the Supreme Court, after three decades as its ideological fulcrum or “swing justice.” His retirement didn’t come as a total surprise — it was strongly rumored last year, and predicted earlier this week by Rick Hasen and Ed Whelan, among others — but when the news became official, it still packed a punch.

After fielding many AMK-related questions yesterday on Twitter (@DavidLat), I figured I might as well write a post. So here goes: answers to some of your most Frequently Asked Questions about Justice Kennedy’s retirement and its significance.

How big a deal is this?

A pretty big deal. Here’s how Professor Carl Tobias, a leading expert on the federal judiciary, described the situation to me:

Justice Kennedy has served long and honorably. He was the deciding vote on many issues of great importance to many Americans. He enjoyed an outsized role as the author of the majority opinions in the four key cases extending rights to LGBTQ individuals: Romer, Lawrence, Windsor and Obergefell. That will be his major legacy, but he also cast key votes in areas such as abortion, affirmative action and discrimination.

Indeed. And Justice Kennedy’s retirement will give President Donald Trump the opportunity to appoint a second justice to the Supreme Court, who will most likely be rather young and severely conservative — significantly more conservative than Justice Kennedy. This will move SCOTUS to the right, affecting its rulings on many critical issues for decades to come — and possibly causing the Court to revisit certain past precedents, overturning or limiting them.

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So as a progressive — a supporter of abortion rights, gay marriage, affirmative action, and other causes where Justice Kennedy sometimes sided with liberals — should I be crying and rending my garments about now?

No. See my post from this morning, Why Justice Kennedy’s Retirement From The Supreme Court Is Not The End Of The World.

Is President Trump about to nominate Judge Jeanine Pirro or Judge Andrew Napolitano to SCOTUS?

No. President Donald Trump is famously unorthodox and unpredictable, but not when it comes to judicial nominations. He’s delivering on his campaign promise to Make The Judiciary Great Again — for conservatives. His lower-court picks have been straight out of the Federalist Society playbook — young, conservative, and highly credentialed (with a few notable exceptions, almost all of them for the district rather than circuit courts).

And Trump has made it even easier for us to predict his SCOTUS choices. During the presidential campaign, he released two shortlists of possible high-court contenders, and after his election, he announced a third. The three lists have been combined into one big list of 25 potential nominees, hosted on the White House website.

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Trump’s first Supreme Court pick, Justice Neil Gorsuch, came off the list and was totally textbook — the kind of SCOTUS pick you’d expect from any Republican administration. NMG’s appointment could have been seen a mile away (or predicted a decade in advance, as I did).

So who will be selected to replace Justice Kennedy?

In the game of SCOTUS craps, I’d say Judge Brett Kavanaugh (D.C. Cir.) is the 6 or 8, Judge Raymond Kethledge (6th Cir.) is the 5 or 9, and Judge Amy Coney Barrett (7th Cir.) is the 4 or 10. (For those of you who aren’t craps players, this means that Judge Kavanaugh is the frontrunner, Judge Kethledge has a decent shot, and Judge Barrett is a very plausible outside pick.)

Where am I getting this from? Mainly gossip from my D.C. and Fed Soc friends (which hasn’t steered me too wrong over the years; see generally my coverage of lower-court nominations, including predictions of nominees well in advance). But these names as three top picks also make perfect sense on paper.

Judge Kavanaugh, 53, is a highly respected judge on the super-powerful D.C. Circuit, a former law clerk to Justice Kennedy (just like Neil Gorsuch), and the number-one “feeder judge” of clerks to the Supreme Court. When Trump released shortlist #3 last November, word on the street in D.C. was that it was for the express purpose of putting Kavanaugh into the mix.

Like Justice Gorsuch, Judge Kavanaugh fits the DJT profile to a giant gold “T” — he’s conservative and credentialed, as well as a tall, good-looking white male (because our reality-TV president cares about such things). Trump likes “winners,” and Kavanaugh is a “winner,” in a figurative and literal sense — figuratively because of his amazing legal career, and literally in terms of his running career.

Why wasn’t Kavanaugh on the first two lists? Some say it was because he didn’t strike down Obamacare, but my understanding is that it was more because he was viewed as too “inside the Beltway,” at least back when DJT was on the populist presidential campaign trail.

(On the Obamacare issue, note that Judge Kavanaugh didn’t totally uphold it, as did Judge Jeffrey Sutton (which might explain Sutton’s absence from the Trump list). Instead, Kavanaugh brilliantly finessed the issue by dodging the Commerce Clause merits on jurisdictional grounds — three cheers for the Anti-Injunction Act!)

Judge Kethledge, 51, is also a deeply esteemed federal appellate judge, former AMK clerk, and big SCOTUS feeder. He appeals for many of the same reasons as Kavanaugh — conservative, credentialed, handsome, a “winner” — and could be a good alternative if Kavanaugh is viewed as too controversial or hard to confirm. Kethledge is also one of the most likable and charming people I have ever met; I had the pleasure of interviewing him about his (excellent) book, Lead Yourself First (affiliate link).

To be clear, I don’t think Kavanaugh should be controversial — I actually think he’d be great (as would Kethledge) — but there are things in his past that could become grist for the opposition mill. Some Trump supporters I’ve heard from don’t like his status as a “Bushie” (he held a top position in George W. Bush’s White House), his not taking a total ax to the Affordable Care Act when he had the chance, and his work for Independent Counsel Ken Starr during L’Affaire Lewinsky (many Trumpkins aren’t fans of independent or special counsel). Meanwhile, liberals could seize upon the Ken Starr stuff as well — which Senator Chuck Schumer cited in describing Kavanaugh back in 2004 as “the Zelig of young Republican lawyers, [finding] himself at the center of so many high-profile, controversial issues in his short career” — along with certain hot-button D.C. Circuit rulings and votes (e.g., the recent case over an abortion for an unaccompanied immigrant minor).

Judge Barrett, in her mid-40s, is also getting favorable buzz in conservative legal circles. Like Kavanaugh and Kethledge, she too is a conservative legal superstar and former SCOTUS clerk (Scalia). Her nomination scored political points for Trump with the base when her Catholic faith became an issue (and blew up in the Democrats’ faces). She has the added pluses of being younger and a woman.

But these pluses are actually why I think Barrett might not get the nod this time around. Kavanaugh and Kethledge, in their early 50s, are getting close to their SCOTUS “sell by” dates. That’s a bit ridiculous — they’re still quite young, with decades of judicial service ahead of them — but Republicans have a laser-like focus on extreme youth in their judicial nominees (which Democrats would be well advised to emulate).

So I could see Judge Barrett being kept in waiting for the next vacancy, perhaps if Justice Ruth Bader Ginsburg were to leave the Court. To be sure, we are long past the days of allocating SCOTUS seats demographically (the “Catholic” seat, the “Jewish” seat, the “African-American” seat, etc.), and the Trump administration doesn’t pay much attention to diversity in judicial picks anyway. But there’s no denying that replacing a woman — and historic crusader for women’s rights — with a man, and probably a straight white man at that, isn’t a great look. Better to save Judge Barrett for the future, by which point she will have more judicial experience under her belt.

Who will be involved in the selection process?

Historically, the judicial selection process has been a joint enterprise between the White House and the Justice Department — but in this administration, White House Counsel Don McGahn and his team have taken the lead in making picks, with the DOJ performing more of a vetting function. So expect McGahn, who played a crucial role in selecting Gorsuch, to have a crucial role yet again. (Aren’t you glad you didn’t resign, Mr. McGahn?)

Folks outside the White House will be consulted as well. The Federalist Society will once again have a major voice. In fact, Leonard Leo, the executive vice president of Fed Soc, is even going on leave to focus on the nomination and confirmation process (as he did for Gorsuch).

Will the nominee get confirmed, and if so, when?

I agree with Professor Tobias: “The White House must watch the calendar, as the clock is ticking, but I assume the GOP will want August hearings and September confirmation, if possible.”

Ed Whelan, the prominent legal conservative who will also be involved in the SCOTUS selection process, predicts a September confirmation as well:

https://twitter.com/EdWhelanEPPC/status/1012052432052944896

Republicans have the votes to confirm a mainstream nominee — i.e., pretty much everyone on the list of 25 — and with filibusters and blue slips gone, Republicans can’t be “Garlanded.”

I wondered if the Democrats could make like the Texas Eleven and flee D.C. to deny the Senate a quorum, but quorum is just 51 votes, which Republicans have. And if the presence of Senator John McCain were to become an issue, I agree with predictions that he would resign, allowing Arizona’s Republican governor, Doug Ducey, to appoint his replacement.

But I don’t think it will come to that. In fact, I predict that a handful of moderate Democrats will cross over and support Trump’s nominee (as they did for Gorsuch, confirmed 54-45 with three Democratic votes).

What happens to Justice Kennedy’s law clerks?

Yes, the fate of the Republic is at stake. But this is Above the Law, and our readers are dying to know: what happens to the four “orphaned” law clerks that Justice Kennedy hired for 2018-2019?

Don’t worry too much about them. If precedent holds — and it certainly does at SCOTUS — they will all wind up clerking for the Court.

As a retired justice, AMK is entitled to one clerk, who will assist him on various matters — e.g., speeches, books, cases he might hear while sitting by designation on a circuit court — and who will also get farmed out to work for an active justice. The other three clerks will most likely get hired by other justices, either Justice Kennedy’s successor or one of the current justices.

If Judge Kavanaugh or Judge Kethledge were to replace Justice Kennedy, it would be especially likely for the AMK clerks to get picked up by Kennedy’s successor. Both judges are former Kennedy clerks who feel a certain loyalty to their boss and would probably be happy to help out in this way. And note that of the four orphaned AMK clerks, one clerked for Kethledge (Alex Kazam) and one clerked for Kavanaugh (Clayton Kozinski). If either judge were to become a justice, he’d surely be happy to be reunited with a clerk he viewed highly enough to recommend to Justice Kennedy.

(Also note that in the past — I’m not sure what current or recent practice is — Brett Kavanaugh served as a “screener” for Kennedy, interviewing potential clerks and picking the ones who would actually meet with the justice himself. (I had a screening interview with Kavanaugh years ago, before he took the bench.) So Judge Kavanaugh presumably shares Justice Kenendy’s taste in law clerks, another factor suggesting he’d be happy to pick up some of the displaced AMK kids.)

So there you have it: answers to your FAQs about Justice Anthony M. Kennedy’s retirement from SCOTUS. But take my comments with a veritable shaker of salt. I might follow this subject more closely than the average bear, but most of this is just guesswork and speculation (which is still fun to engage in, even if not terribly reliable).

Remember — when it comes to all things AMK, the Magic 8 Ball gets the last word:

Earlier: Why Justice Kennedy’s Retirement From The Supreme Court Is Not The End Of The World

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].

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