Trump gets historic chance to shift Supreme Court to right

Pablo Tucker
July 1, 2018

Kennedy informed his colleagues of his plans, then went to the White House to meet with Trump, where the president said they talked for half an hour about a potential successor and other topics.

In addition, it's possible that an ongoing Texas case questioning the viability of the Affordable Care Act (ACA) may also make it to the court eventually, but the effect of Kennedy's retirement on that case is not clear, Jost said.

Kennedy's retirement comes after becoming the first Supreme Court justice to serve alongside one of his former clerks - Justice Neil Gorsuch, who was confirmed in April 2017. Recall that the court's four liberal justices were confirmed by Senate votes of 87-9 (Stephen Breyer), 96-3 (Ruth Bader Ginsburg), 63-37 (Elena Kagan) and 68-31 (Sonia Sotomayor). Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of IN - who all voted for Trump's previous nominee, Neil Gorsuch, who now sits on the court. If past practice is any indication, the president will name a nominee within weeks, setting in motion a process that could allow confirmation by the time the court reconvenes in early October.

Murkowski isn't rated as favorably among abortion rights groups, she has a 58-percent vote rating in 2018 from Planned Parenthood, but arguably there is no one in the Senate more independent than the Alaska Republican, and prouder of her reputation among women in her state. Susan Collins said that she sees Roe v. Wade, the landmark case that legalized abortion across the US, as "settled law". Such a dramatic step may not be immediately likely, but a more conservative court might be more willing to sustain abortion restrictions. Crawford points out that he refused to overturn Roe v. Wade, and he also constrained the bolder conservatives on the court, pulling them back a little bit.

Interest groups across the political spectrum are expected to mobilize to support and fight the nomination because it is so likely to push the court to the right.


Republicans now hold a bare 51-49 majority in the Senate, although that includes the ailing Sen. John McCain, R-Ariz., is out undergoing treatment for brain cancer.

But Republican Senate Majority Leader Mitch McConnell indicated he was opposed to waiting, saying that "we will vote to confirm Justice Kennedy's successor this fall". A 50-50 tie would be broken by Vice President Mike Pence.

Prominent on that list are Judges Thomas Hardiman of Pennsylvania and William Pryor of Alabama, seriously considered for the seat eventually filled by Justice Gorsuch, and Judge Brett Kavanaugh, who serves on the federal appeals court in Washington, DC. In particular with this president, senators must insist that the new justice institutionally protect the courts and reject Trump's view that his office is beyond the reach of criminal laws, exempt from subpoenas and able to self-pardon.

"Thus far, President Trump's judicial nominations have reflected a keen understanding of the vital role the judges play in our Constitutional order".

The Supreme Court has two cases left to decide before justices begin their summer break.


He has cast the deciding vote in a number of historic cases, including the high court's groundbreaking decision in 2015 legalizing gay marriage, a five-to-four decision for which he wrote the opinion.

The outgoing senator from Utah, Republican Orrin Hatch, who is retiring this year, commended Kennedy for his stalwart defense of the First Amendment.

Trump and a Republican-controlled Senate will now nominate and confirm a justice to fill the seat vacated by Kennedy, and it has abortion-rights advocates all over the country concerned. Control of the Senate is at stake in the November elections, and if Democrats capture the majority, Trump could find it hard to get his choice confirmed.

Sen. Richard Blumenthal, D-Connecticut, said he, too, agreed the confirmation vote should be stalled until after the new Congress is elected.


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