Justice Kennedy retirement could reopen abortion ruling, may factor into November elections

The retirement of U.S. Supreme Court Justice Anthony Kennedy could open the door to revisiting the high court’s controversial Roe v. Wade abortion ruling, but President Donald Trump may have to present a nominee with no political “red flags” to gain U.S. Senate confirmation, according to two Arkansas politicos.

Justice Kennedy announced Wednesday (June 27) his retirement after 43 years on the bench. The Harvard Law School graduate was appointed by President Ronald Reagan to the Supreme Court and was confirmed in February 1988, succeeding then retiring Justice Lewis Powell Jr. Kennedy, who briefly served in the California Army National Guard, was nominated by Reagan after Senate Democrats blocked the previous nominations of Robert Bork and Douglas Ginsburg.

Prior to serving on the nation’s highest court, Kennedy was in private practice in California between 1961 and 1975. During his time in California he worked with then-Gov. Ronald Reagan on state tax legislation. Kennedy was appointed in 1975 by President Gerald Ford to serve on the U.S. Court of Appeals for the Ninth Circuit.

“Justice Kennedy served on the federal bench for 43 years, 30 of which were on the Supreme Court of the United States where he helped shape our country’s jurisprudence in a profound way,” noted a statement from U.S. Sen. John Boozman, R-Ark. “I thank him for his service to our nation and his commitment to upholding the rule of law throughout his tenure on the highest court in the land. I wish him well in retirement and I am eager for the Senate to fulfill our constitutional duty to advise the president on the selection of our next Supreme Court justice.”

Neither Boozman or U.S. Sen. Tom Cotton, R-Ark., serve on the Senate’s Judiciary Committee, the first line of vetting for a Trump nominee.

KENNEDY’S JUDICIAL HISTORY
Although appointed by a Republican president, Kennedy’s bench history has been politically mixed. He recently was part of the majority opinion in Planned Parenthood v. Casey which blocked attempts to limit the right to an abortion, and wrote the opinion in Obergefell v Hodges, the case which legalized same sex marriage.

However, he was considered the swing vote on the recent decision in the Masterpiece v. Colorado Civil Rights case that reversed a lower court ruling against a baker in Colorado who refused to bake a cake for a same-sex wedding. Robert Coon, managing partner at Little Rock-based Impact Management Group, said conservatives “were recently energized by Kennedy’s decision regarding the First Amendment rights of a cake maker in Colorado, though the opinion Kennedy authored was perhaps more narrowly written than what has been suggested.”

Coon also noted Kennedy was the swing vote in the recent ruling (Janus v. American Federation) against labor unions that blocked union dues being automatically deducted from paychecks of public employees. Conservatives view the decision as a victory.

Kennedy’s swing vote background creates disadvantages and opportunities for conservatives and liberals, according to Dr. Jay Barth, the M.E. and Ima Graves Peace Distinguished Professor of Politics at Hendrix College.

“The fact that the swing justice on the Court has just retired ratchets up the attention on the coming nomination battle and, of course, that has implications for the fall campaign,” Barth said. “This likely will turn up enthusiasm among religious right voters who see hopes for finally going after the Roe [abortion] decision, but it will also ratchet up enthusiasm among those on the left who see so many precarious court issues down the line. … Republicans, worried about low turnout from their base, are probably beneficiaries of this event to some degree.”

THE POLITICAL DYNAMIC
Coon said while Trump “has charted an inconsistent ideological course on a number of policy issues,” it’s likely his justice nomination will please conservatives.

“Conservatives generally know what to expect when it comes to Trump’s judicial appointees, and thus far he’s delivered for them.”

Barth said Trump’s challenge will be to provide a balanced nominee that different conservative elements within the U.S. Senate will support.

“If he were to follow the model of Justice Gorsuch that is a consistent ideological conservative judge who comes across as a steady decision maker and who has little in his past that creates red flags, that provides the safest path towards relatively swift nomination, even with Democrats claiming that the Senate should wait until after the election,” Barth noted. “If Trump were to go with a candidate who is less judicial in her or his temperament or about whose past there are questions, that suddenly becomes a riskier choice in a U.S. Senate so evenly split and with Senator McCain’s health being so precarious. Trump clearly got it right with Neil Gorsuch. Can he get it right twice in a row?”

Timing is the issue, Coon said, adding that it’s important for Senate Republicans to finish the nomination process prior to the Nov. 6 general election.

“Should they fail to find a nominee that can build consensus among Republicans in the Senate to obtain the necessary 51 votes, they could squander this historic opportunity by losing control of the chamber in November,” he said.

Barth said Arkansas’ two Senators will have little to say in the matter until a nominee is brought to the full Senate.

“They are both loyal Republicans on such matters and because neither serves on the Judiciary Committee they will likely be in the backseat in the coming months on this issue,” he said.

EARLY CANDIDATES
Following are just some of the possible nominees mentioned by various political groups and media outlets following Kennedy’s announced retirement.

• Amy Barrett, 45
Barrett serves as a judge on the U.S. Court of Appeals for the 7th Circuit. She has been on the law faculty at George Washington University and Notre Dame. Barrett was also part of the legal team representing George W. Bush in the Bush v. Gore case.

• Raymond Gruender, 54
Gruender is a judge with the U.S. Court of Appeals for the 8th Circuit. He is a graduate of the St. Louis-based Washington University School of Law, and served as the United States Attorney for the Eastern District of Missouri. He was confirmed to the 8th Circuit in 2004.

• Thomas Hardiman, 52
Hardiman is a judge with the U.S. Court of Appeals for the 3rd Circuit. He was on the short list to succeed with now Justice Neil Gorsuch to succeed the late Justice Antonin Scalia. He is a graduate of the Georgetown School of Law, and was first appointed to a federal bench – U.S. District Court Judge for the Western District of Pennsylvania – by President George W. Bush.

• Brett Kavanaugh, 52
Kavanaugh is a judge on the U.S. Court of Appeals for the D.C. Circuit. He is a former law clerk for Justice Kennedy and was a senior associate counsel to President George W. Bush. Kavanaugh was confirmed to the D.C. Circuit in 2006.

• Federico Moreno, 66
Moreno is a judge with U.S. District Court for the Southern District of Florida. He was born in Caracas, Venezuela, and is a graduate of the University of Miami Law School. He also has served as a state judge on the 11th Judicial Circuit Court in Florida.

• Kevin Newsom, 45
Newsom is a judge on U.S. Court of Appeals for the 11th Circuit. He is a Harvard Law School graduate and once worked as a law clerk for U.S. Supreme Court Justice David Souter. Born in Birmingham, Ala., Newsom has also worked under two Alabama Attorney Generals.

• Patrick Wyrick, 36
Wyrick is a justice on the Oklahoma Supreme Court, and was the state’s solicitor general for six years. He is a graduate of the University of Oklahoma College of Law. His career includes arguing for the state before the U.S. Supreme Court in a case challenging the constitutionality of lethal injection.