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May 17, 2018


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For the sake of the country, I sincerely hope Justice Kennedy stays on as long as possible. A supreme court nomination fight in the middle of a midterm election (and possible criminal/misconduct allegations against the president*) would be even more of a mess than the current DC dysfunction. And to say that "justices tend to retire during the first two years of a like-minded president’s term" would, to me, mean that he is less likely to leave than otherwise, because Trump and Kennedy are, under no meaning of the phrase, "like minded." (similar to Stevens and his timing of retirement, rather than, say, Rehnquist).

Anthony Gaughan

Thank you for your comment, Anon, and that is a great point about Justice Stevens, who was appointed by the Republican Gerald Ford but chose to retire during the presidency of the Democrat Barack Obama. However, my guess--and it's only a guess--is that Kennedy would prefer to have a Republican president select his replacement rather than a Democratic president. On balance, Kennedy has a mostly conservative voting record (with the exception of some high profile social issues, such as abortion and same-sex marriage). Thus far, Trump's judicial selections have been reliably conservative. So my gut tells me that Trump and Kennedy are "like-minded" or at least "similarly minded" in terms of the kind of justices they would like to see on the Court. But I absolutely could be wrong. As Yogi Berra said, predictions are hard, especially about the future! Thanks again for your comment.

Dave Garrow

"Few would be surprised"? Sorry, I couldn't disagree more: my impression is that a hefty *majority* of longtime close Scotus observers do NOT expect an AMK retirement this summer. And the attention focused on the Iowa bill is just *WAY* overblown. It'll be struck down by the Iowa Supreme Court on independent state grounds & will never even *begin* to make its way towards Scotus in the federal courts. The "sky is faling" perspective on Roe (& Casey) has again & again & again been wrong for ca. 40 years now, though the 'reputational' damage Roe has suffered from this in my mind far outweighs the short-term pro-choice donor-frightening interests that have often motivated it...

I Like Real News

Can we all stop feeding the rumor-mongering frenzy about this? Kennedy has hired his clerks for next Term and has given no indication--none--that he's done. (His age and tenure are not good indices, unless we are going to go through this silly speculation every year, sometimes for multiple justices.) He guards his intentions closely, so it's highly unlikely that Grassley's political theater is based on insider information. And though it's true he's suggested he would like to be replaced by a Republican president, there's no indication he'd like to be replaced by THIS Republican president, at least not with a Republican-controlled Senate. Yes, he could certainly retire at any time. But the truth is that this is all just speculation. Let's not indulge today's propensity for clickbaity "journalism."

Anthony Gaughan

Thank you for your great comment, Dave. You are absolutely right that I was dead wrong to say "few would be surprised." Obviously, many people would be surprised! So I second your motion that I was completely wrong about that.

As for your really interesting point about the Iowa Supreme Court, you very well may be right about the adequate and independent state grounds issue. But I would point out that one of the moderate justices on the state supreme court (Justice Zager, who sometimes sides with the conservatives but not always, sort of like Justice Kennedy) just announced his retirement. In addition, two weeks ago the court announced that Justice Hecht (a Democratic appointee) was diagnosed with melanoma. So it is not clear what the court's ideological make up will look like by the time the ACLU/Planned Parenthood case reaches the Iowa supreme court.

Thanks again for your comment!

Anthony Gaughan

Thank you for your comment, "I Like Real News." Your point about Kennedy hiring clerks for the 2018-19 term is an important one.

However, it's interesting to note that when Justice Gorsuch clerked for Kennedy, he was actually originally hired by Justice White, who retired in 1993 just before Gorsuch arrived for his clerkship. So if the past practices of retiring justices are any indication, it's not necessarily the case that hiring clerks for the next term conclusively establishes Kennedy's intentions. But I agree with you that it is certainly one indication that he may stay on for another term.

Thanks again for your comment.

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