There are rumors and rumblings surrounding the possibility of Supreme Court Justice Anthony Kennedy and whether this could be has last term on the court. If this happens, President Trump would be given a second opportunity to appoint a Justice which would likely set the direction of the court for several decades.
Fox News reports on the possible rumors and why some signs are pointing to a Kennedy retirement:
Supreme Court Associate Justice Anthony Kennedy is rumored to be poised to announce his retirement and, if it happens, it will trigger a confirmation battle that could make the fight over Neil Gorsuch look like a playground skirmish.
That’s because Gorsuch replaced Antonin Scalia, who was a reliable conservative vote. Kennedy, on the other hand, while considered a conservative, has often found himself in the middle, and become the court’s “swing vote.” Thus, whoever replaces him could very much determine in what direction the court will go.
There are a number of areas where Kennedy has not followed the “conservative” line. Maybe nowhere has this been clearer than in cases dealing with sexual orientation.
In the case where the four conservative justices split with the four liberal justices, Kennedy was often the tiebreaker who could swing one way or the other, depending on the legal matter at hand. However, if Kennedy is replaced with an ardent conservative justice, the court could begin swinging heavily conservative, handing down 5-4 decisions on issues of great consequence such as abortion and further challenges on same-sex marriage recognition.
As CNN reports, if Kennedy retires, the legacy of Donald Trump could be solidified as one of shaping the Supreme Court:
A Kennedy retirement — whether it comes tomorrow, this week or any time between now and 2019 (after that you can be sure Democrats would block any attempt to nominate a new justice, given the Merrick Garland precedent) — would mean in the eyes of many conservatives that Trump would be the man who changed the legal course of the country. He would become the new Reagan for many in the conservative movement.
That perception would be almost entirely unaffected by any and all of the other things Trump has done or will do over the next three and a half years in office. All his tasteless tweets, his braggadocio, his inconsistent commitment to conservative principles on spending, debt and trade (among other things) would pale in comparison to the fact that he was the Republican president that handed conservatives a solid 5-4 majority on the Supreme Court.
CNN also pointed out that Democrats will fight hard against a second nomination since it will likely redefine the court and how it handles many issues. However, since they tried to filibuster Justice Neil Gorsuch, the Senate Republicans already did away with any chance for stopping a second nomination by removing the filibuster as a tool used by the minority party to halt judicial nominations.
Therefore, a second nominee to replace Kennedy would only have the meet the threshold of getting a simple majority of Republicans in the Senate. In fact, they could even lose two Republican Senates, maybe a couple moderates, and have Vice President Mike Pence break the tie to get the 51st vote.
No word on when Kennedy could retire, but it appears it could be sooner than later. The court is announcing several decisions this week and will then be recessed. Some believe that during the next couple months, Kennedy could step aside.