Justice Kennedy Really Screwed Up

First, he waited until the last day of the Term to announce his retirement. This shortened the timeframe for deliberating on a Supreme Court nomination and for vetting a nominee.

Second, he retired effective July 31, 2018. Thus, we now again face the prospect of a shorthanded Supreme Court, maybe for two years or more.


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4 Responses

  1. Joe says:

    “Thus, we now again face the prospect of a shorthanded Supreme Court, maybe for two years or more.”

    I will believe such a long vacancy when I see it. First, the Republicans have at least three months to confirm a new justice even if the Dems win in November, which sadly still an uphill battle. Two, even if the Dems do win and the Republicans can’t do that (their best bet is to pick a woman judge), the likes of Heitkamp et. al. sticking together no matter who is nominated and leaving the seat vacant that long is dubious to me.

    If it happen, oh well. We survived an eight person Court before. Kennedy isn’t there, so he needn’t worry about it anymore. And, Prof. Eric “Eight Man Court” Segall will be happy.

  2. Brett Bellmore says:

    I doubt it; Ford’s attack on Kavanaugh is already falling apart in the face of her unreasonable demands, and the manifest lack of evidence for her story. I expect Kavanaugh to be confirmed some time next week, though it may take Pence casting a vote in a divided Senate.

  3. Lurker says:

    The fact that Kennedy resigned effective 7/31 is not the problem; the problem is that it appears he did not and does not want to serve until a successor is confirmed (which is presumably why he drafted the letter that way).

    If, however, he were willing, all that would be necessary is for Trump to say, “I hereby nominate ret. Justice Anthony Kennedy, who has graciously agreed to temporarily retake his seat and resume active duty. If confirmed, he will immediately resubmit his resignation, this time to take effect only upon confirmation of a successor.”

    The next day there would be a voice vote in the Senate and Kennedy would be confirmed with at least 55-60 votes (all republicans, red state Dems) and probably more (whether all remaining Dems would vote no, even with confirmation otherwise assured, just because they would prefer a prolonged 4-4 deadlock seems unlikely).

    • Joe says:

      I think a resignation implies a desire to resign permanently, especially if past practice was to avoid doing it that way. So, putting aside the unlikely nature of your proposal (which in West Wing-land might be a nice idea), I think you are cutting things a bit too thin.

      And, relying on a justice’s promise to resign like that seems iffy. In fact, it very well might erase the vacancy totally, justices not having “limited terms” by constitutional rule. I guess the Senate can still make some sort of statement, by resolution perhaps, that they support a nominee. And, then Kennedy could resign with the understanding the Senate would then immediately act to confirm officially.

      To toss it out there, I looked it up. Justice Souter announced he was going to retire 5/1/09. so gave Obama and the Senate more time. There was also less chance of problems there given the make-up of the Senate. But, the letter announced he would retire at the summer recess. Thus, there was an eight person Court until Sotomayor was confirmed in August.


      After this matter, perhaps justices will favor waiting until a new justice is confirmed.