CNN is speculating on the possible retirement of Justice Kennedy, and in the process they reference a January article by Ed Whelan for National Review, in which he states:
1. Will a Supreme Court vacancy arise?
Your guess is as good as mine. If the rumors are true that Justice Kennedy has been looking to retire, then it seems a reasonable bet that he would do so this spring. Indeed, the very real prospect that Democrats will win control of the Senate in the November 2018 elections might clinch his decision to do so. If he waits until next year, and if Democrats take control of the Senate, his seat would probably remain empty until 2021. That’s probably not a scenario that Kennedy would welcome.
I very much doubt that any other justice is considering stepping down. But, as Justice Scalia’s death reminds us, vacancies can arise when you’re not expecting them.
If a vacancy does arise this year, the White House ought to be able to obtain Senate confirmation of an outstanding candidate. Thanks to the Senate Democrats’ foolish obstruction of the Gorsuch nomination, Senate Republicans abolished the filibuster (the 60-vote threshold for cloture) for Supreme Court nominations. So the White House will know from the outset that the next nominee will need the support of only 50 senators, plus the tie-breaking vote of Vice President Pence, for confirmation.
Yet, that suggests Kennedy would prefer a strongly conservative court, and, quite frankly, that would not be congruent with his voting behaviors, where he swings back and forth over the liberal / conservative line.
My suspicion? He may choose to not retire until the mid-terms are completed and the new Congress is sworn in. The Republicans, although often into team-voting, may find themselves at the barest of majorities in which every single Republican could withhold their vote for a Trump-nominated new Associate Justice, demanding approval of pet projects in exchange for their vote. If the House GOP has suffered catastrophic losses, as may happen, a Republican Senator may project that the Republican base is no longer the potent force that they apparently currently fear, and be willing to pursue their own priorities by such means.
If these Republican Senators are excessively principled, they might even reject the nomination outright, assuming the nominee is either unqualified, or is too extreme for the Republican’s taste – both of which are richly possible from this White House. In this case, Trump may be forced to nominate a more reasonable candidate, one which the Democrats might even be able to endorse – which is not necessarily a negative issue for their electoral chances. After all, governance competency is emerging as an issue in the uproar over GOP incompetency during the current Congressional term.
And if the Democrats control the Senate at that time? They expressed their loathing for Senator McConnell’s corrupt behavior by rejecting Gorsuch, a much hyped candidate who has yet to demonstrate excellence, unless you’re a conservative – not the best test around. Whelan may think it foolish that the Democrats refused to endorse Gorsuch and thus engendered the abolition of the filibuster, but Senator McConnell’s decision to abolish the filibuster of cloture can take place at any time. It was necessary to underscore McConnell’s failure in the conservative realm, to highlight how he would break the rules and abandon traditions that had been set in place for good reason in order to stack SCOTUS with an ideological Justice. Whelan focuses too much on the conflict within the Senate, and not on the ammunition the Democrats were stockpiling for upcoming elections – if they’re wise enough to use it.
But they need not continue to reject the President’s choices automatically. If the Democrats want to build their Party’s reputation as the best qualified on governance issues, then they need to demonstrate their willingness to separate the nominee from the nominator. This means careful evaluation of the nominee on her merits, not on the merits of the incompetent Trump. Indeed, if they wish to establish themselves as a Party that embodies wise conservative principles, they could even bring back the cloture requirement Whelan referenced. Such a move, if handled and advertised properly, would enhance the Party’s reputation for fair and just dealing, and could easily be contrasted with the Republicans to create a Republican reputation for greediness and abusive power politics that is employed for the gain of the Party, to the detriment of the country.
But all this depends on Justice Kennedy’s choice. I’m just guessing, really, upon when he’ll retire. But the Democrats do need to be prepared, strategy in mind, for each of the situations.
