Justice Anthony Kennedy to retire, opening Supreme Court seat for President Trump

Richard Wolf | USA TODAY

Show Caption Hide Caption Supreme Court Justice Anthony Kennedy retiring Supreme Court Justice Anthony Kennedy has delivered a retirement notice to President Trump, giving Trump a second Supreme Court nomination. Richard Wolf reports.

WASHINGTON – Supreme Court Justice Anthony Kennedy announced his retirement Wednesday, handing President Trump and Senate Republicans an opportunity to create a solidly conservative court that could last for decades.

Kennedy first informed his colleagues on the court about his plans, then personally delivered a simple, two-paragraph letter to Trump addressed, "My dear Mr. President."

Shortly after speaking with Kennedy, the president said he would move "immediately" to select someone from a list of 25 potential nominees assembled previously with the help of conservative interest groups.

"It will be somebody from that list," Trump said. "Hopefully, we will pick someone who is just as outstanding."

Kennedy's long-rumored decision to step down July 31 will touch off a titanic battle between conservatives and liberals in the nation's capital, on the airwaves and in states represented by senators whose votes will be needed to confirm his successor.

Within hours of Kennedy's announcement, the conservative Judicial Crisis Network said it would launch a seven-figure, cable TV and digital advertising campaign targeting vulnerable Senate Democrats. The ad, titled "Another Great Justice," praises Trump’s nomination last year of Justice Neil Gorsuch in anticipation of his next nominee.

Senate Majority Leader Mitch McConnell, R-Ky., who refused in 2016 to consider President Barack Obama's nomination of federal appeals court Judge Merrick Garland for a vacant seat, vowed to move ahead swiftly.

“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy," McConnell said. "We will vote to confirm Justice Kennedy’s successor this fall."

His Democratic counterpart, New York Sen. Charles Schumer, called that hypocritical after the GOP's refusal to vote on Obama's nominee in the past election cycle. He proposed several litmus tests for any Trump pick.

"The Senate should reject, on a bipartisan basis, any justice who would overturn Roe v. Wade or undermine key health care protections," Schumer said. "The Senate should reject anyone who will instinctively side with powerful special interests over the interests of average Americans."

Kennedy, who will turn 82 next month, held the most important seat on the court for more than a decade: He was the swing vote on issues ranging from abortion and affirmative action to gay rights and capital punishment, often siding with the court’s more liberal justices.

His long-anticipated retirement will come a year after Gorsuch’s confirmation to replace the late Justice Antonin Scalia, which followed a 14-month saga that replenished but did not bolster the conservatives’ narrow advantage on the high court.

"For a member of the legal profession, it is the highest of honors to serve on this court," Kennedy said in his letter to the president. "Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises."

He had given no hint of his departure during the court's last day in session Wednesday, sitting quietly with his right hand to his temple, occasionally adjusting his glasses. However, his wife Mary and several members of his family were in the courtroom, a sign of things to come.

A hole in the center

Kennedy’s departure will leave a hole in the middle of the court that Republicans are eager to fill with a more reliable conservative. Trump has said he would choose from the list assembled with the help of the conservative Federalist Society and Heritage Foundation.

That list was expanded in November to include five more names, including Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — a front-runner for the seat who, like Gorsuch, once clerked for Kennedy.

Leonard Leo, an outside advisor to the White House on judicial nominations who is on leave from the Federalist Society, said the next nominee will be in the Gorsuch mold.

“I expect the nominee to be like Justice Gorsuch, to demonstrate excellence in every respect, and to earn widespread support from the American people, and bipartisan support for confirmation in the Senate,” Leo said.

Trump’s opportunity is similar to George W. Bush’s in 2006, when he replaced moderate Justice Sandra Day O’Connor with the more conservative Samuel Alito. It is not quite the bonanza handed George H.W. Bush in 1991, when he replaced liberal titan Thurgood Marshall with ultra-conservative Clarence Thomas. That still could happen, however, if liberal Justices Ruth Bader Ginsburg or Stephen Breyer were to exit while Trump or another Republican is in the White House.

Among the other judges on Trump’s list most often mentioned as potential Kennedy replacements are Thomas Hardiman of Pennsylvania, who serves on the U.S. Court of Appeals for the 3rd Circuit, and Raymond Kethledge of Michigan, who serves on the 6th Circuit. More intriguing are fresh faces such as newly confirmed federal appeals court judges Amy Coney Barrett of Indiana and Amul Thapar of Kentucky.

Clues that Kennedy might retire began to emerge in 2016, when he scheduled a reunion of former law clerks a year earlier than his customary five-year interval. But skeptics noted the reunion was planned even before the November election, at a time when Hillary Clinton was the heavy favorite to win the White House.

Kennedy’s ultimate decision to wait until 2018 gave the Supreme Court time to settle into a new pattern with Gorsuch shoring up its right flank. Had Kennedy waited until next year, it would have given Democrats a chance to regain the Senate majority this November and potentially block Trump's nominee.

Following Trump's initial reaction, the White House released a statement calling Kennedy "a true man of letters."

"During his tenure on the court, he authored landmark opinions in every significant area of constitutional law, most notably on equal protection under the law, the separation of powers, and the First Amendment’s guarantees of freedom of speech and religion," the statement said.

"Justice Kennedy has been a tireless voice for individual rights and the Founders’ enduring vision of limited government. His words have left an indelible mark not only on this generation, but on the fabric of American history."

Fight turns to Senate

Republicans have a 51-seat majority now, giving them the ability to withstand Democratic opposition. If ailing Sen. John McCain remains absent, Vice President Pence could provide the 51st vote. The traditional 60-vote threshold for high court nominees was abolished last April when Democrats threatened to block Gorsuch’s confirmation, prompting McConnell to push through a rules change allowing justices to be confirmed with simple majority votes.

Still, the upcoming battle over Kennedy’s replacement is certain to be one of the most intense ever, with conservative and liberal interest groups poised to spend tens of millions of dollars in advertising and grass-roots activity.

Much of the liberals’ effort likely will focus on moderate GOP senators such as Maine’s Susan Collins and Alaska’s Lisa Murkowski, who might be wary of adding a hard-line conservative and risking decades-old precedents such as Roe v. Wade, which legalized abortion in 1973. Conservatives will focus on moderate Democrats running for re-election in Trump country, such as Indiana's Joe Donnelly, North Dakota's Heidi Heitkamp and West Virginia's Joe Manchin.

That battle is likely to play out over the next three months. Republicans are determined to fill Kennedy’s seat before the court’s 2018 term begins in October, and well in advance of the November elections.

Contributing: David Jackson and Gregory Korte

More: Trump, Republicans in Supreme Court driver's seat

More: Analysis: Neil Gorsuch could lead Supreme Court to a new conservative era

More: Supreme Court punts on two cases regarding partisan election districts