A tad unusually, Justice Anthony Kennedy has announced that he is retiring after 30 years of service at the ripe old age of 81.
As per the United States constitution the President now gets to nominate Kennedy’s successor, who will then be approved by the Senate in a vote. Senate leader Mitch McConnell has already announced that the ‘nominee’ (whoever that will be) will be put to the Senate for appointment confirmation in the autumn.
It is clear that McConnell will try to push this nomination process to be completed as soon as possible - in his mind it must be done before the mid-term elections which could see the Senate swing to Democrat control.
It is particularly interesting that McConnell has already announced his intentions; previously, he and the Senate Republicans blocked Obamas nomination of Merrick Garland in 2016 on the basis that it was an election year and therefore it was ‘unfair’ that Obama got to pick a third judge when he was leaving office so soon after the nomination process.
It remains to be seen whether the Senate Democrats will try to pull a similar stunt in the coming months as payback in kind.
Trump is unlikely to be too concerned; the Senate appointment confirmation process in and of itself is usually hassle free and straightforward (Justice Neil Gorsuch was confirmed with a 54-45 vote split) because it is a procedure to understand whether the candidate is qualified to hold such a position, rather than a political decision.
Trump finds himself in the rather unique position of appointing two judges in a very short space of time, meaning he has the power to influence the Supreme Court for decades after he has left office.
The decisions of Justice Gorsuch, for example, who assumed office in 2017 at the age of fifty, will be felt by Americans for decades to come, and now Trump has the opportunity to further consolidate the ideological make-up of the court.
Presidents can only ever be in office for eight years but the Justices sit for life and cannot be removed. This is where Trump can make his legacy.
Kennedy was usually considered the ‘swing’ judge, whose opinions would break tie votes on important judicial issues.
Despite being nominated by Republican President Ronald Reagan, Kennedy was not someone who always adhered to a particular ideological leaning when it came to his decisions. For every landmark gay rights case he supported there was support of gun rights and laxer laws on voting. The list of the crucial decisions made by Kennedy is endless.
Currently, the ideological make-up of the court at the moment is four conservative judges and four liberal judges. It stands to reason that Trump will push for a conservative judge based on the White Houses prepopulated list of Supreme Court replacements.
Kennedy’s successor will be well placed to cast judgements on key cases. Trump has already made it clear through interviews and debates that he is a ‘pro-life’ president and so it is possible that via his nomination he will be targeting and attempting to overturn Roe v. Wade (declaring abortion legal).
However, Justices have always been fickle and they have trained their whole lives to make decisions based on the interpretation of the law, so it may transpire that Trump’s nominee is someone who does not wholly support his presidency. If this happens, Trump may come to regret his pick.