Justice Anthony Kennedy Retiring -- Sets Stage for a Fierce Battle Over His Successor

U.S. Supreme Court Justice Anthony Kennedy
He will be 82 on July 23, 2018

. . . Departure stokes passions in both political parties going into this
fall’s contest for control of Congress

Ken Blackwell (@kenblackwell) is a former ambassador to the U.N., a former Domestic Policy Advisor to the Trump Presidential Transition Team, and former Ohio State Treasurer and mayor of Cincinnati who currently serves on the board of numerous conservative policy organizations. He is a contributing author to the ARRA News Service.  Blackwell shared the following Wall Street Journal article, published yesterday, in which Blackwell was quoted. The article is also shared in its entirely under the "fair-use doctrine" as it provided a balanced view of opinions on a top which will be affecting all Americans.
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by Jess Bravin, Louise Radnofsky and Joshua Jamerson: WASHINGTON — Justice Anthony Kennedy announced his retirement Wednesday, setting the stage for a monumental battle over the nation’s constitutional direction, handing President Donald Trump the chance to cement the Supreme Court’s conservative course for years to come and stoking raw passions in both political parties going into this fall’s battle for Congress.

“He will be missed,” Mr. Trump said of Justice Kennedy. “We have a very excellent list of great, talented, highly educated, highly intelligent— hopefully, tremendous—people,” he added of a possible successor.

Senate Majority Leader Mitch McConnell (R., Ky.) immediately promised to confirm Mr. Trump’s nominee, whoever it may be, before the Democrats can potentially recapture the chamber in November.

“We will vote to confirm Justice Kennedy’s successor this fall,” Mr. McConnell said on the Senate floor, adding, “We’ll look forward to yet another outstanding selection.”

Democrats, still furious over Mr. McConnell’s refusal to consider President Barack Obama’s nominee for a 2016 vacancy, Judge Merrick Garland, tried to stop an all-but-inevitable result. If Republicans wanted to give voters a say in the Supreme Court selection in 2016, the Democrats said, GOP leaders should do the same now.

“Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now,” said Senate Minority Leader Chuck Schumer (D., N.Y.), “as Leader McConnell thought they deserved to be heard then.”

The partisan intensity flowed in large part from the pivotal role Justice Kennedy has played over his 30 years on the high court. While most appointees in recent years have succeeded a like-minded predecessor, Justice Kennedy, while conservative in nature, nonetheless has proved a maverick on issues that have helped define modern American society.

His departure puts in play an array of consequential issues, with liberal rulings on access to abortion, gay rights, capital punishment and voting rights having been decided by his decision to part from fellow court conservatives.

Supreme Court nominations in recent decades have become fodder for bitter public lobbying campaigns, as opponents seek embarrassing details on a nominee and supporters air ads on his or her behalf.

This year, the vacancy lands in the middle of a political climate that is already overheated. The approach of the first midterm vote since Mr. Trump’s victory has produced harsh rhetoric, an array of demonstrations and protests, and political turmoil in both parties.

Polls suggest Democrats currently have an edge when it comes to voter enthusiasm given their widespread distaste for the president, but Republican operatives hope a Supreme Court vacancy will drive more GOP voters to the polls, including some who may have misgivings about Mr. Trump but embrace his call for conservative judges.

Conservatives in recent years have redoubled their effort to groom and vet judicial candidates with ideological pedigrees, pushing relentlessly when they have held the White House to get them through. For many in the GOP establishment, it was Mr. Trump’s pledge to delegate judicial selections to them that overcame initial discomfort
with the political outsider who in other fields relied on his gut rather than party orthodoxy.

Mr. Trump’s first nominee, Justice Neil Gorsuch, was selected from lists assembled by leaders of the Federalist Society and the Heritage Foundation, two intellectual bulwarks of Washington’s Republican leadership. Mr. Trump has promised that subsequent choices will follow from their rosters as well.

Leonard Leo, the Federalist Society executive who steered Justice Gorsuch’s selection for the White House, immediately took a leave of absence Wednesday that allows him to reprise that role at Mr. Trump’s side.

People who have spoken with Mr. Leo and others in the decision-making process said the calculus for the White House now would include a strong preference for one of the six women on the existing lists as a means of shoring up support from two female senators who have prominently bucked their party since Mr. Trump was sworn in, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska.

Mr. Trump’s list of 25 potential candidates includes judges Amy Coney Barrett of Indiana, Allison Eid of Colorado, Britt Grant of Georgia, Joan Larsen of Michigan, Margaret Ryan of Virginia and Diane Sykes of Wisconsin.

Ken Blackwell, who was the domestic policy adviser for Mr. Trump’s transition team, described what he saw as a “breakthrough opportunity” for the president on Wednesday in the chance to ensure a historic first of seating an “ironclad originalist” woman on the Supreme Court.

But that is far from the only consideration. Some inside the White House think Brett Kavanaugh, of the U.S. Court of Appeals for the District of Columbia Circuit, should be a leading candidate, a White House official said.

The vacancy also presents a rare rallying focus for an at-times-tumultuous administration that looks back at the Gorsuch nomination as one of its most seamless accomplishments to date.

Republicans on Capitol Hill likewise were eager to relive a rare episode in the Trump era of a united GOP. Justice Kennedy’s departure comes amid battles over such issues as trade and immigration that are badly dividing the party in advance of the midterms, and some Republican candidates have suggested they would rather talk about judges than Mr. Trump’s more provocative statements and tweets.

“President Trump will have another opportunity to appoint a conservative justice who will carry out the constitutional readings, and I think that’s very important,” Rep. Steve Scalise of Louisiana, the No. 3 House Republican, told reporters Wednesday.

Across the aisle, Democrats promised vigorous resistance, after being stung in recent days by a series of 5-4 Supreme Court decisions that went against their positions on issues from immigration to abortion to unions.

“On the heels of another Supreme Court term defined by a Republican 5-4 majority delivering big wins for right-wing and corporate interests, Justice Kennedy’s retirement should be a wake-up call,” said Sen. Sheldon Whitehouse (D., R.I.). “I’ll do everything in my power to keep President Trump, Sen. McConnell and their dark-money backers from installing another nominee predetermined to assist the wealthy and powerful.”

But it’s not clear what Democrats can do to block a Trump nominee if the Republicans—who hold a 51-49 advantage in the Senate with Vice President Mike Pence casting tiebreaking votes—stick together now.

Many progressives, who showed their muscle within the party in Tuesday’s primary victories, support blocking Mr. Trump’s nominee by any means necessary.

“Mitch McConnell won the showdown over the last Supreme Court vacancy,” said Stephanie Taylor, co-founder of the Progressive Change Campaign Committee, which is backing liberal candidates in races this year. “Now it’s [Senate Minority Leader] Chuck Schumer’s turn. Americans now and for generations will remember the strength or
weakness he projects in this moment.”

But an aggressive strategy, even if it were somehow successful, could backfire for a number of Senate Democrats who are up for re-election this year in states Mr. Trump carried in 2016, such as Sens. Joe Manchin in West Virginia and Joe Donnelly in Indiana.

Republicans believe that confirming conservative judges is a strong base motivator, and several GOP Senate candidates pounced on their opponents just hours after Justice Kennedy’s announced retirement.

But that is far from the only consideration. Some inside the White House think Brett Kavanaugh, of the U.S. Court of Appeals for the District of Columbia Circuit, should be a leading candidate, a White House official said.

The vacancy also presents a rare rallying focus for an at-times-tumultuous administration that looks back at the Gorsuch nomination as one of its most seamless accomplishments to date.

Republicans on Capitol Hill likewise were eager to relive a rare episode in the Trump era of a united GOP. Justice Kennedy’s departure comes amid battles over such issues as trade and immigration that are badly dividing the party in advance of the midterms, and some Republican candidates have suggested they would rather talk about judges than Mr. Trump’s more provocative statements and tweets.

“President Trump will have another opportunity to appoint a conservative justice who will carry out the constitutional readings, and I think that’s very important,” Rep. Steve Scalise of Louisiana, the No. 3 House Republican, told reporters Wednesday.

Across the aisle, Democrats promised vigorous resistance, after being stung in recent days by a series of 5-4 Supreme Court decisions that went against their positions on issues from immigration to abortion to unions.

“On the heels of another Supreme Court term defined by a Republican 5-4 majority delivering big wins for right-wing and corporate interests, Justice Kennedy’s retirement should be a wake-up call,” said Sen. Sheldon Whitehouse (D., R.I.). “I’ll do everything in my power to keep President Trump, Sen. McConnell and their dark-money backers from installing another nominee predetermined to assist the wealthy and powerful.”

But it’s not clear what Democrats can do to block a Trump nominee if the Republicans—who hold a 51-49 advantage in the Senate with Vice President Mike Pence casting tiebreaking votes—stick together now.

Many progressives, who showed their muscle within the party in Tuesday’s primary victories, support blocking Mr. Trump’s nominee by any means necessary.

Rep. Marsha Blackburn, the Republican in the race for Tennessee’s open Senate seat, immediately said she would vote to confirm judges like Justice Gorsuch. “This is an important difference between Phil Bredesen and me,” she said of her Democratic opponent. “He will be with Chuck Schumer, who will attempt to block the president’s pick and weaken the court.”

Mr. Bredesen tweeted that he would “vote for or against a nominee based solely on whether I believe them to be highly qualified & ethical, not based on partisan politics.”

Democratic Sen. Jon Tester of Montana voted against Mr. Gorsuch, as his Republican challenger, Matt Rosendale, noted Wednesday. “I’m not holding my breath that Tester will finally…support the president’s nominee,” Mr. Rosendale said.

Mr. Tester said that he takes “my constitutional duty to vet all nominees very seriously.”

Messrs. Manchin and Donnelly, along with Democratic Sen. Heidi Heitkamp of North Dakota, voted to confirm Justice Gorsuch.

Ms. Heitkamp said she would consider a nominee “who reflects the same qualities embodied by Justice Kennedy of being fair, pragmatic and empathetic to all who appear before the Court.” Mr. Donnelly said he “will thoroughly review the record and qualifications of any nominee.” Mr. Manchin didn’t return a request for comment.

Some Democrats held out a glimmer of hope based on the Republicans’ bare majority in the Senate. Sen. John McCain (R., Ariz.), who is at home battling an aggressive form of brain cancer, may not be in Washington to vote, leaving Mr. McConnell with 50 GOP senators, meaning any defections could create problems for the Republican leader.

Sen. Michael Bennet (D., Colo.) highlighted that close division. “The president should resist the temptation to nominate an extremist who could be approved only by a bare majority vote,” he said. “We should not poison the court further with the Senate’s partisanship.”

Democrats also immediately appealed to their base for funds to fuel their November campaigns. Barely an hour after Justice Kennedy’s announcement, fundraising emails started hitting Democratic activists.

“This seat, this coming appointment, could be the difference between a woman’s right to make her own health-care choices, and Roe v. Wade being overturned,” Sen. Jeff Merkley (D., Ore.) said in pitch for $3 donations.

Social conservatives agreed. “Justice Kennedy’s retirement from the Supreme Court marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, which supports antiabortion candidates for federal office.

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