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Resignation of Anthony Kennedy from the U.S. Supreme Court

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SCOTUS Vacancy, 2018
Judge Brett Kavanaugh2.jpg
Nominee
Brett Kavanaugh
Retiring Justice
Anthony Kennedy
Vacancy date
July 31, 2018
Confirmation date
October 6, 2018
Coverage

Timeline
Confirmation hearings
Kavanaugh nomination
Process to fill the seat
Kennedy resignation

See also
Brett Kavanaugh
Supreme Court vacancy, 2017
Supreme Court of the United States

This page provides an overview of events related to the resignation of Associate Justice Anthony Kennedy, from his resignation announcement through the selection of his potential replacement on July 9, 2018. For full coverage of the 2018 Supreme Court vacancy, click here.

On June 27, 2018, Justice Anthony Kennedy announced he would assume senior status on the U.S. Supreme Court effective July 31, 2018. Senior status is a classification for federal judges at all levels who are semi-retired. Senior judges are Article III judges who, having met eligibility through age and service requirements, continue to serve on federal courts while hearing a reduced number of cases.

In an official statement, Kennedy said he wanted to spend more time with his family.[1] Kennedy was considered by many to be the court's swing vote, often casting the deciding vote between the court's more conservative and liberal members. He authored a number of noteworthy opinions: Obergefell v. Hodges, Citizens United v. Federal Election Commission, and Planned Parenthood of Southeastern Pa. v. Casey.

President Donald Trump (R) nominated Brett Kavanaugh to succeed Kennedy on the Supreme Court on July 9, 2018. This was the second Supreme Court nomination of his presidency.[2] Confirmation hearings were held September 4-7, 2018. A committee vote was expected during the week of September 17, with a full vote from the Senate to follow by the end of September.[3]

Reaction to resignation

Congress

  • Senate Majority Leader Mitch McConnell (R-KY): "The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy. We will vote to confirm Justice Kennedy's successor this fall."[4]
  • Senate Minority Leader Chuck Schumer (D-NY): "This is the most important Supreme Court vacancy for this country in at least a generation. Nothing less than the fate of our health care system, reproductive rights for women, and countless other protections for middle-class Americans are at stake."[5]
  • House Minority Leader Nancy Pelosi (D-CA): "Justice Kennedy held the key to many decisions governing everyday American life. With his retirement from the bench, Trump now has that key — one that threatens our health care, women’s rights, LGBT rights, worker rights and our democracy. The key belongs to us, the people."[6]
  • Sen. Amy Klobuchar (D-MN): "#Justice Kennedy was a swing vote in a critical case that affirmed Roe v. Wade. He was a key vote on gay marriage. He cannot be replaced by an ideologue. The American people must have a say."[7]
  • Rep. Ted Lieu (D-CA): "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new Congress."[8]
  • Sen. Tim Scott (R-SC): "I want to thank Justice Kennedy for his service to our nation. The President now has the opportunity to nominate a justice that interprets the Constitution as our Founding Fathers intended, and is committed to being a fair defender of the rule of law."[9]
  • Rep. Cathy McMorris Rodgers (R-WA): "Justice Kennedy has served as a defender of our Constitutional freedoms. I thank him for his dedicated service to our great nation. I’m excited to see who @POTUS will nominate next to protect our Constitution, uphold the rule of law, and preserve the voice of We the People."[10]

Media

  • Brent Kendall, The Wall Street Journal: "Justice Kennedy’s decision to step down is a seismic event in the nation’s capital, one certain to create an impassioned political battle over the Supreme Court....Justice Kennedy’s departure gives Mr. Trump the chance shift the court in a considerably more conservative direction—potentially for decades. More immediately, it sets the stage for what is likely to be the toughest fight over a court seat in recent memory, with congressional elections looming and liberals still angry over Republicans’ refusal to consider former President Barack Obama’s nominee for the most recent vacancy."[11]
  • Dylan Matthews, Vox: "An America after Anthony Kennedy looks significantly different from America before. The movement against mass incarceration could run into unprecedented resistance from the Court, and the anti-abortion movement could notch its greatest victories in a half-century. This Supreme Court vacancy will give Donald Trump the power to shift jurisprudence on a range of critical issues. It could wind up being the most important part of his legacy."[12]
  • Robert Barnes, The Washington Post: "His [Kennedy's] decision likely will make Chief Justice John G. Roberts Jr. the central justice on the nine-member court. Roberts, 63, has shown himself to be well to the right of Kennedy. Washington could be in for an epic battle over Kennedy’s replacement. While Senate Democrats lack the numbers to deny the seat to whoever Trump chooses, they will ratchet up the stakes of the choice."[13]
  • Josh Gerstein, Politico: "His [Kennedy's] exit is expected to create a furious fight in the Senate over his replacement, and it could thrust the often overlooked issue of judicial selection to the forefront in close Senate races in this year's midterms. The retirement comes as a blow to Democrats, and cries of 'Ohh' and 'Oh, my God' punctuated a call between members of the Democratic National Committee’s rules and bylaws panel as the news broke Wednesday."[14]
  • Tom Goldstein, SCOTUS blog contributor and Washington lawyer: "[Kennedy is] the most important member of the court in a century, maybe ever. It's not just that he was the pivotal vote so often. It's that his thinking changed the country. Gay rights is the biggest example, but it's not the only one."[15]

Supreme Court members[16]

  • Chief Justice John Roberts Jr.: "Justice Anthony Kennedy served the country he loved for 43 years in the Judicial Branch — 30 as a [m]ember of this Court. His jurisprudence prominently features an abiding commitment to liberty and the personal dignity of every person. Justice Kennedy taught collegiality and civil discourse by example. He brought his wise counsel outside the courthouse and around the world through teaching, lectures, and discussions focused on the rule of law and the necessity of civic engagement. An individual of unquestioned independence and integrity, he is equally comfortable discussing the Greek philosophers or telling tales of Old Sacramento. His wife Mary is a treasured member of the Court family — warm, vibrant, and discerning. I look forward to seeing much of both of them in the years ahead."
  • Associate Justice Clarence Thomas: "I am deeply, deeply saddened to see Justice Kennedy leave the Court. We have been colleagues here at the Court for over a quarter of a century. Throughout that time, he has been a consummate gentleman and a wonderful colleague. And, he has been unfailingly civil and kind in all of his interactions with each of his colleagues. Even during the most difficult and challenging times, he had a way of elevating each of us by his example. He is a good man who will be remembered not only for a long and productive career on the bench but also for the way he conducted himself. It is an honor to have served on the Court with him and to know him as a friend. Virginia and I wish him and Mary nothing but the best."
  • Associate Justice Ruth Bader Ginsburg: "Justice Kennedy is a true gentleman, a caring jurist, and a grand colleague in all respects. I will miss the pleasure of his company at our [c]onference table, his helpful suggestions on circulating opinions, his recommendations of art exhibitions to visit with my chambers staff, and much more. For the good he has done during the 43 years he has served as a member of the [f]ederal [j]udiciary, he has earned a rousing [b]ravo."
  • Associate Justice Stephen G. Breyer: "Justice Kennedy has been my friend and judicial colleague for close to [25] years. He is a judge of great vision. His knowledge of the Constitution is profound. He is thoughtful and careful in his decision-making, and he has made it a great pleasure for all of us to work together with him. I will miss him as a colleague, but I hope to continue to see him for many years as a friend."
  • Associate Justice Samuel A. Alito: "It has been a great honor to serve with Justice Kennedy for the past 12 1/2 terms. Tony was warm and welcoming when I arrived at the Court on my first day, and it has been a pleasure to work with him ever since. I could not have hoped for a more congenial and considerate colleague, and I will miss working with him. His work has made an impressive contribution to the development of the law in many fields, and he will surely be remembered as one of the most important justices in the history of the Court."
  • Associate Justice Sonia Sotomayor: "Tony Kennedy is one of the most thoughtful colleagues I have known. He is passionate about the Constitution and our Court and has been a devoted member of our Court community. It is undeniable that he has had a monumental effect on the law. I have witnessed his love and dedication to his family and know that he will cherish spending more time with them. I will miss working with him dearly, but I know he will continue to be a roaring lion, even as he takes senior status."
  • Associate Justice Elena Kagan: "I am deeply grateful to have had the chance to serve on the Court with Tony Kennedy. His legacy will be of enduring importance. The Court and country will miss his wisdom, his independence and integrity, his love of liberty and commitment to personal dignity. And I'll miss his kindness, decency, and warmth. He was the best colleague imaginable. I wish Tony and Mary the best of everything in the years ahead, and look forward to their continued friendship."
  • Associate Justice Neil Gorsuch: "For more than forty years, Justice Kennedy has served the [j]udiciary and the [n]ation with unfailing integrity and immense wisdom. He is a model of civility, judicial temperament, and kindness. His respect for every person and every case has made him a great man and a great judge. It was the honor of a lifetime to serve as his law clerk 25 years ago, and it has been an unexpected joy to serve this year as his colleague. I also want to extend my gratitude to the Justice's wife, Mary. Her graciousness has left an indelible mark on my family and everyone she touches. I wish the [j]ustice and Mary, and their wonderful family, every happiness in the years ahead."

Opinions on the potential nominees

Congress

In an interview with Fox News on June 27, Ted Cruz said,

“ I think the single best choice that President Trump could make to fill this vacancy is Senator Mike Lee. I think he would be extraordinary...I know beyond a shadow of a doubt that Mike Lee would be faithful to the Constitution and Bill of Rights, that he’s not going to evolve.[17][18] ”

The Lexington Herald Leader reported that Mitch McConnell encouraged President Trump to choose Judge Amul Thapar as a Supreme Court nominee. McConnell said,

“ I think he's [Thapar] absolutely brilliant, with the right temperament. But others have their favorites. And I have no idea who the president may choose.[19][18] ”

In an interview with CNN on July 1, Tim Scott said,

“ I’m going to recommend Trey Gowdy be one of the folks that I would have a strong recommendation for him serving on the Supreme Court. I hope that the President will be open to that recommendation.[20][18] ”

Media and op-eds

  • Matt Schlapp, writing for The Hill:
“ Too many times, conservatives have been burned by Supreme Court nominees who lack a judicial record that demonstrates their approach. But if you want to know why Brett Kavanaugh is the best choice for the Supreme Court, all you have to do is look at his record. Over his 12 years on the D.C. Circuit, Judge Kavanaugh has consistently, boldly, and fearlessly applied textualism and originalism to a striking range of legal issues. Even more impressive is that, during the past decade, the Supreme Court has adopted Kavanaugh’s position an astonishing 11 times. He literally wrote the book on judicial precedent, with Justice Gorsuch as one of his co-authors. No one else on the president’s list comes even close to that level of influence.[21][18] ”
  • Ilya Shapiro, writing for The Washington Examiner:
“ President Trump has many great choices for the Supreme Court and in other circumstances I might be writing about one of them. But if he decides to nominate Thapar, the nation will get a young, charismatic, personable, textualist and originalist who could serve on the court for three decades or more.[22][18] ”
  • Hugh Hewitt, writing for The Washington Post:
“ He [Kethledge] has stood strongly with free exercise rights, siding for example with a church and its volunteers against the Labor Department’s bureaucrats, writing a separate concurrence to emphasize “The Department should tend to what is Caesar’s, and leave the rest alone.” He has an exemplary record on Second Amendment rights, concurring with his colleague Judge Jeffrey Sutton’s declaration of the right to bear arms as “fundamental” in a crucial en banc case on the amendment. Kethledge has also dissented in a Fifth Amendment takings case from the decision of his colleagues to punt back an aggrieved party to state court in a way he concluded indicated that the court had “lost our constitutional bearings” on property rights.[23][18] ”
  • Ramesh Ponnuru, writing for Bloomberg:
“ The main reason I favor [Amy Coney] Barrett, though, is the obvious one: She’s a woman. It may be that in an ideal world, the sex of a Supreme Court nominee would not matter. But opposing a woman will probably be more awkward for senators than opposing a man would be. Also, it cannot be good for conservatism that all three women now on the court are liberals. If Roe v. Wade is ever overturned — as I certainly hope it will be, as it is an unjust decision with no plausible basis in the Constitution — it would be better if it were not done by only male justices, with every female justice in dissent.[24][18] ”
  • Ruth Marcus, writing for Real Clear Politics:
“ Which is why, notwithstanding this final, disappointing term, his [Kennedy's] departure is so alarming. And why this must be another Bork moment -- insisting on a nominee that is, to invoke the language of the Bork debate, within the broad mainstream of judicial thought.

And one who, like swapping Kennedy for Powell, will not radically alter the balance of the court. A nominee should be considered on his or her merits, primarily, but it is politically naive and, I think, substantively mistaken not to take into account the impact of that nominee's views on the overall balance of the institution.[25][18]

”
  • Matthew Walther, writing for The Week:
“ If any more proof were necessary of the steeliness of Barrett's character, it is worth pointing out that she has managed to have a successful career as a scholar and teacher while raising seven children. Out of 113 Supreme Court justices in our nation's history, only four have been women, and I for one think we are due for another...Finally, there is something to be said, I think, for the idea of having someone who did not attend an Ivy League law school on the Supreme Court for a change. Gifted as the faculty and alumni of Harvard and Yale no doubt are, it is difficult to think that the accidents by which a small fraction of would-be American lawyers happen to receive instruction from these august personalities are an exhaustive test of one's ability to interpret statutes.[26][18] ”
  • Alberto R. Gonzales, writing for USA Today:
“ The president should nominate someone with a record of achievement and excellence in the profession that one would expect of a Supreme Court justice. The president is also likely to nominate someone between the ages of 45 and 55 years, someone old enough to have a record of accomplishments, yet young enough to serve on the court for a substantial number of years and influence the court’s jurisprudence over generations.[27][18] ”

Impact on the 2018 midterm elections

This section curates commentary and analysis about the impact of the Supreme Court vacancy and subsequent appointment on the 2018 midterm elections.

  • Chris Wilson, GOP pollster: "This is every Democrat candidate’s worst nightmare, as it changes the game on turnout. It doesn’t just close the enthusiasm gap, it injects rocket fuel into the evangelical base that helped Trump win swing states."[28]
  • Barry Casselman, political analyst: "The new nominee is likely to be less of a swing vote. This could put considerable pressure on senate candidates in the autumn campaign. In those states, such as North Dakota, West Virginia and Indiana, each of which Donald Trump carried by big margins in 2016, Democratic incumbents will be under pressure to declare they will break party ranks and vote to confirm the Trump nominee. This is exactly what Democratic Senators Heitkamp, Manchin and Donnelly of those states did when Neil Gorsuch was confirmed in 2017. These three incumbents are each very vulnerable in 2018."[29]

Possible nominees

See also: Possible nominees to replace Anthony Kennedy on the United States Supreme Court

The names below appeared on a list of 25 potential Supreme Court nominees released in November 2017. On June 27, 2018, Trump stated that Anthony Kennedy's successor would come from this list:[30]

2018 Potential Supreme Court nominees
Name Current Position Year Nominated Nominated By Age on 6/30/2018 Undergraduate institution Law school
Amy Coney Barrett United States Court of Appeals for the 7th Circuit 2017 Donald Trump (R) 46 Rhodes College Notre Dame Law School
Keith Blackwell Georgia Supreme Court 2012 Gov. Nathan Deal (R) 42 University of Georgia University of Georgia School of Law
Charles Canady Florida Supreme Court 2008 Gov. Charlie Crist (R) 64 Haverford College Yale Law School
Steven Colloton United States Court of Appeals for the Eighth Circuit 2003 George W. Bush (R) 55 Princeton University Yale Law School
Allison Eid United States Court of Appeals for the 10th Circuit 2017 Donald Trump (R) 53 Stanford University University of Chicago Law School
Britt Grant Georgia Supreme Court 2016 Gov. Nathan Deal (R) 40 Wake Forest University Stanford Law School
Raymond Gruender United States Court of Appeals for the Eighth Circuit 2004 George W. Bush (R) 54 Washington University of St. Louis Washington University of St. Louis
Thomas Hardiman United States Court of Appeals for the 3rd Circuit 2007 George W. Bush (R) 52 University of Notre Dame Georgetown University Law Center
Brett Kavanaugh United States Court of Appeals for the D.C. Circuit 2006 George W. Bush (R) 53 Yale College Yale Law School
Raymond Kethledge United States Court of Appeals for the 6th Circuit 2008 George W. Bush (R) 51 University of Michigan University of Michigan Law School
Joan Larsen United States Court of Appeals for the 6th Circuit 2017 Donald Trump (R) 49 University of Northern Iowa Northwestern University School of Law
Mike Lee (R) United States Senator from Utah - - 47 Brigham Young University Brigham Young University School of Law
Thomas Lee Utah Supreme Court 2010 Gov. Gary Herbert (R) 53 Brigham Young University University of Chicago Law School
Edward Mansfield Iowa Supreme Court 2011 Gov. Terry Branstad (R) 61 Harvard University Yale Law School
Federico Moreno United States District Court for the Southern District of Florida 1990 George H.W. Bush (R) 66 University of Notre Dame University of Miami School of Law
Kevin Newsom United States Court of Appeals for the Eleventh Circuit 2017 Donald Trump (R) 45 Samford University Harvard Law School
William Pryor United States Court of Appeals for the Eleventh Circuit 2004 George W. Bush (R) 56 Northeast Louisiana University Tulane University Law School
Margaret Ryan United States Court of Appeals for the Armed Forces 2006 George W. Bush (R) 54 Knox College Notre Dame Law School
David Stras United States Court of Appeals for the Eighth Circuit 2017 Donald Trump (R) 43 University of Kansas University of Kansas School of Law
Diane Sykes United States Court of Appeals for the 7th Circuit 2004 George W. Bush (R) 60 Northwestern University Marquette University Law School
Amul Thapar United States Court of Appeals for the 6th Circuit 2017 Donald Trump (R) 49 Boston College University of California at Berkeley School of Law
Timothy Tymkovich United States Court of Appeals for the 10th Circuit 2003 George W. Bush (R) 61 Colorado College University of Colorado Law School
Robert Young Michigan Supreme Court (retired) 1999 Gov. John Engler (R) 67 Harvard University Harvard Law School
Don Willett United States Court of Appeals for the Fifth Circuit 2017 Donald Trump (R) 51 Baylor University Duke University School of Law
Patrick Wyrick Oklahoma Supreme Court 2017 Gov. Mary Fallin (R) 37 University of Oklahoma University of Oklahoma College of Law

See also

Footnotes

  1. ↑ Supreme Court of the United States, "Press Releases," June 27, 2018
  2. ↑ Twitter, "Donald Trump on Twitter," June 27, 2018
  3. ↑ CNN, "The Kavanaugh hearing," September 7, 2018
  4. ↑ Roll Call, "Senators Quickly Pivot to SCOTUS Confirmation Mode," June 27, 2018
  5. ↑ Twitter, "Chuck Schumer on Twitter," June 27, 2018
  6. ↑ Twitter, "Nancy Pelosi on Twitter," June 28, 2018
  7. ↑ Twitter, "Amy Klobuchar on Twitter," June 27, 2018
  8. ↑ Twitter, "Ted Lieu on Twitter," June 27, 2018
  9. ↑ Twitter, "Tim Scott on Twitter," June 27, 2018
  10. ↑ Twitter, "CathyMcMorrisRodgers on Twitter," June 27, 2018
  11. ↑ The Wall Street Journal, "Supreme Court Justice Anthony Kennedy Announces Retirement," June 27, 2018
  12. ↑ Vox, "America after Anthony Kennedy," Updated June 27, 2018
  13. ↑ The Washington Post, "Justice Kennedy, the pivotal swing vote on the Supreme Court, announces retirement," June 27, 2018
  14. ↑ Politico, "Anthony Kennedy retiring, giving Trump opening to reshape Supreme Court," June 27, 2018
  15. ↑ NBC News, "Justice Kennedy to retire, Trump can solidify court's conservative majority," June 27, 2018
  16. ↑ Washington Examiner, "Here's what the remaining Supreme Court justices had to say about Kennedy's retirement," June 27, 2018
  17. ↑ The Hill, "Cruz: Mike Lee best choice to fill Supreme Court vacancy," June 27, 2018
  18. ↑ 18.0 18.1 18.2 18.3 18.4 18.5 18.6 18.7 18.8 18.9 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
  19. ↑ Lexington Herald Leader, "McConnell touts Thapar for Supreme Court seat," June 30, 2018
  20. ↑ Roll Call, "Scott Will Recommend Gowdy for Supreme Court Vacancy," July 2, 2018
  21. ↑ The Hill, "Matt Schlapp: With Brett Kavanaugh, America will have a bold, brilliant Supreme Court justice," July 5, 2018
  22. ↑ Washington Examiner, "Trump should take a serious look at Amul Thapar for the Supreme Court," July 5, 2018
  23. ↑ The Washington Post, "Here’s who Trump should pick for the Supreme Court," July 2, 2018
  24. ↑ Bloomberg, "Kennedy’s Replacement Should Be Judge Amy Coney Barrett," June 28, 2018
  25. ↑ Real Clear Politics, "This Must Be Another Bork Moment," June 28, 2018
  26. ↑ The Week, "Amy Barrett for the Supreme Court," July 2, 2018
  27. ↑ USA Today, "Justice Anthony Kennedy's replacement should be young, conservative and swiftly confirmed," June 27, 2018
  28. ↑ Fox News, "John Fund: The Supreme Court just became a YUGE factor in the 2018 elections," June 28, 2018
  29. ↑ Barry Casselman The Preludium News Service, "THE PRAIRIE EDITOR: Flash Points," June 30, 2018
  30. ↑ CBS News, "Trump says Justice Kennedy's replacement will come from list of 25," June 27, 2018
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