Kennedy’s Retirement Sets Up Battle over Future of Court

The retirement announcement of Justice Anthony Kennedy from the Supreme Court sent shockwaves throughout the political world on Wednesday. Kennedy, who had been rumored about possibly retiring sometime during Trump’s first term, will leave the court on July 31.

Kennedy was known for much of his tenure as the swing vote on the court, was still considered a conservative justice, though he voted with the liberal bloc on issues such gay rights and abortion. On controversial issues, his vote usually determined the outcome of the case given the two blocs of normally liberal and normally conservative blocs (one major exception were the Obamacare cases, in which Chief Justice John Roberts sided with the liberal bloc to uphold it, while Kennedy voted with the conservatives to overturn it).

If Trump manages to get his nominee confirmed, assuming the nominee is in the mold of his first nominee, Neil Gorsuch, who often votes with the conservative bloc and holds to the idea of interpreting the constitution as written, it could move the court further to a more conservative direction on most issues, such as abortion and labor issues. Democrats in Congress are expected to near-unanimously oppose whoever the nominee is, though some senators from states Trump won, such as Joe Donnelly from Indiana, Joe Machin from West Virginia, and Heidi Heitkamp from North Dakota, may vote for the eventual nominee; all three voted to confirm Gorsuch last year. However, Trump could lose support from moderate, pro-choice Republicans, such as Lisa Murkowski from Alaska and Susan Collins from Maine. In addition, John McCain’s possible absence because of brain cancer may mean one fewer Republican vote.

Trump Selects Neil Gorsuch for Supreme Court

President Trump announced his selection for the Supreme Court seat left vacant by the late Justice Antonin Scalia last year, with Neil Gorsuch of the Tenth Circuit Court of Appeals as his pick. Trump said of Gorsuch at the announcement address, "The qualifications of Judge Gorsuch are beyond dispute. He is the man of our country and a man who our country really needs and needs badly to ensure the rule of law and the rule of justice."

Gorsuch has served on the Tenth Circuit Appeal Court since 2006, where he was nominated by President George W. Bush and confirmed by voice vote. A native of Denver, Colorado, he is the son of  Anne Gorsuch Burford, Environmental Protection Agency head under Reagan. He received his undergraduate degree from Columbia University, where he founded The Fed, a satirical newspaper, along with Andrew Levy, now a Fox News personality. He graduated from Harvard Law School and received a degree from the University of Oxford as a Marshall Scholar.

Calling Scalia a "lion of the law" at the announcement, Gorsuch is known for his advocacy an originalist, textualist approach in interpreting the Constitution, similar to that of Scalia. Gorsuch will likely most often side with the conservative side of the court should he be confirmed, giving the court a 5-4 conservative majority, with Associate Justice Anthony Kennedy (for whom Gorsuch had once clerked) as the swing vote.

Democrats have begun to announce their opposition to Gorsuch, many angered that Obama's nominee, Merrick Garland, received no hearing or vote by the Republican Senate. Sen. Jeff Merkely (D-OR) released a press statement, saying, "This is a stolen seat being filled by an illegitimate and extreme nominee (Gorsuch), and I will do everything in my power to stand up against this assault on the Court.”

If more Democrats feel the same way, it could set a lengthy, tense confirmation battle in the weeks ahead.