Trump choice for Supreme Court could alter its balance for years
Justice Anthony Kennedy’s retirement sets stage for fight with Democrats on successor
US Supreme Court Justice Anthony Kennedy on Wednesday announced his retirement from the bench, affording President Donald Trump the opportunity to name his replacement — a move that could dramatically alter the ideological leaning of the court for years to come.
Who will be Justice Kennedy’s replacement?
Last year, the White House released a list of 25 names it said the president would pick from the next time he was given the opportunity to replace a Supreme Court justice. Among them, two names stand out — William Pryor, a US court of appeals judge from Alabama, and Thomas Hardiman, a US court of appeals judge in Pennsylvania, both of whom Mr Trump interviewed before choosing Neil Gorsuch to fill the vacant seat of Antonin Scalia.
Democrats have criticised the shortlist for its lack of diversity. Just six on the list are women, while all but three are white. The youngest, Patrick Wyrick, a justice on the Oklahoma Supreme Court, is just 37, meaning he could potentially sit on the bench for the next five decades.
How soon could Justice Kennedy’s replacement be confirmed?
Both Mr Trump and Republican Senate leaders have vowed to have a quick and speedy confirmation process for the president’s eventual pick, raising the possibility that senators are likely to spend more time in Washington to get the confirmation through by the autumn.
Republicans believe it is in their best interest to get the new justice confirmed by the November midterm elections — first, because they have control of the Senate, and second, because they believe it will play well with Republican voters, many of whom have supported the president primarily because he promised to appoint true conservatives to the court.
Senate majority leader Mitch McConnell has vowed that the Senate will vote on Mr Trump’s pick in September. Many Democrats, however, have promised to play hardball, and slow down the confirmation hearings with delaying tactics.
Will any Democrats vote for Mr Trump’s pick? Will any Republicans vote against?
In the Democrats’ case, quite possibly. In April 2017, three Democratic senators voted to confirm Mr Trump’s first Supreme Court pick, Neil Gorsuch— Joe Donnelly of Indiana, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota. All three Democrats face highly competitive re-election races in November in states that voted for Mr Trump in 2016.
There are 51 Republicans in the 100-seat Senate. In 2017, Mr McConnell invoked the “nuclear option”, ending the supermajority once needed to confirm a Supreme Court justice, so a simple majority of 51 senators would push the nominee through.
Before that crucial change, in 2016 Republicans refused to hold a vote on Barack Obama’s Supreme Court nominee, Merrick Garland, in the run-up to the presidential election that year. Republicans held the seat open until Mr Trump appointed Mr Gorsuch.
On the Republican side, it is possible Mr Trump could lose one or two votes. John McCain, Jeff Flake and Bob Corker have all clashed with the president; Susan Collins and Lisa Murkowski parted ways with their party to vote against the Republican repeal of Obamacare last summer. Yet if Mr Trump appoints a middle-of-the-road conservative justice, along the lines of Mr Gorsuch, with no controversial biographical footnotes, it would be hard to imagine any of those five senators voting against.
At the same time, it is unclear whether Mr McCain, who has been battling a deadly form of brain cancer at home in Arizona, will be able to take part in the vote, meaning Mr McConnell has even less room for error.
What are the long-term implications for the court?
Democrats have warned that Justice Kennedy’s replacement could alter the course of the court for decades to come. They are right. For the past decade, Justice Kennedy has been the only swing vote, voting to uphold restrictions on abortions, but to legalise gay marriage in the US. Few believe that Mr Trump will appoint a justice who could swing in a similar way — one of the reasons that liberals are so worried about the appointment. Moreover, most of Mr Trump’s top picks are in their forties and early fifties, easily giving them decades to serve on the court. The oldest justices following Justice Kennedy’s departure will be Ruth Bader Ginsburg and Stephen Breyer, both from the court’s liberal faction.
Among Democrats’ biggest worries in the immediate term will be the future of abortions and gay rights in the US. Mr Trump has previously said he planned to appoint justices who would overturn the landmark ruling Roe v Wade, which legalised abortion in the US. Liberals also worry that a more conservative court will mean more protections for corporations and fewer for minorities.