The landmark ruling guaranteeing a woman’s right to an abortion is likely to be struck down soon now that U.S. Supreme Court Justice Anthony Kennedy has decided to retire, one of his former law clerks said Wednesday.
Kennedy was among three Republican-appointed justices who upheld abortion rights, USC law professor Sam Erman noted.
“I don’t know if they will actually overturn it or reduce it to close to nothing, but it seems pretty likely the constitutional protections for abortions won’t amount to much pretty soon,” Erman said.
The 81-year-old Kennedy, who has served on the nation’s highest court for 30 years, sent a letter to President Donald Trump on Wednesday announcing his retirement, effective July 31.
For most of his time on the court Kennedy has been regarded as a swing vote, sometimes siding with the panel’s conservatives while other times voting with his more liberal colleagues, making him pivotal in many of the court’s most momentous decision of recent decades, including rulings on Trump’s travel ban, gay marriage, affirmative action and the 2000 Bush/Gore recount.
Erman speculated that ultimately there could be a reprise of President Franklin Roosevelt’s infamous 1930s attempt to “pack the court” with more justices to get around a 5-justice majority that was stymieing his New Deal policies. The chief justice then, however, changed course and became a swing vote that backed Roosevelt policies, helping to preserve the nine-member court.
“It is true ultimately that the court is a political institution,” Erman said. “It rarely gets too far out of line, but if it does get way out of line the answer is often politics. But you’d have to control all the political branches to (expand the court). If it was going to happen it’s a ways off still.”
Trump said Wednesday that Kennedy — who was appointed by President Ronald Reagan in 1988 — “has been a great justice of the Supreme Court,” and he added the move to seek a replacement will “begin immediately … hopefully we will pick someone who is just as outstanding.”
Trump noted he earlier had a list of nominees he released during his candidacy for president and that it will be “somebody from that list … They will come from that list of 25 people.”
Trump said Kennedy paid him a visit for about 30 minutes Wednesday.
The politics of the replacement of Kennedy began immediately.
Democratic National Committee Chairman Tom Perez said it put extra emphasis on November’s election.
“Democrats and Republicans should reject any nominee who won’t uphold our constitution and our basic human rights, and who would vote to overturn Roe v. Wade,” Perez said. “Elections have consequences. The last Supreme Court vacancy was brazenly stolen by shameless Republican leaders with no respect for American democracy. We cannot let that happen again.”
Perez was referring to the death of Justice Antonin Scalia, which prompted then-President Barack Obama to nominate Merrick Garland. The Republican majority in the Senate, however, refused to hold confirmation hearings because it was a presidential election year, and then moved to eliminate the filibuster requiring 60 votes to break it so Neil Gorsuch, whom Trump nominated after taking office, could be appointed.
Democratic California Sen. Dianne Feinstein said there should be no move to consider a new justice until after the November elections.
“We are now four months away from an election to determine the party that will control the Senate,” Feinstein said. “There should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in. Leader McConnell set that standard in 2016 when he denied Judge Garland a hearing for nearly a year, and the Senate should follow the McConnell Standard.”
California’s other Democratic senator, Kamala Harris, concurred.
“This Supreme Court vacancy put issues that affect every single American in the balance, from a woman’s constitutionally protected right to make her own health care decisions to privacy, equality and civil rights,” Harris said. “Given the stakes of this seat, which will determine the fate of protected constitutional rights, the American people, who are set to vote in less than four months, deserve to have their voice heard. We should not vote on confirmation until they have voted at the ballot box.”
Harris, the former state attorney general, said Trump’s potential nominees are “complete non-starters. They are conservative ideologues instead of mainstream jurists. We cannot and will not accept them to serve on the highest court in the land, which is supposed to stand for equal protection under the law and justice for all.”
Feinstein praised Kennedy as a “pivotal and important Supreme Court justice for many years. He respected the Constitution and was a dedicated public servant.”
Erman recalled how even after he left the job, his old boss called him when he learned of he and his wife’s birth of their twins.
“I had sent out an email and I wouldn’t have had his email so I think I included his secretary on the list and very quickly I got a phone call,” Erman said.
“He was the first person outside my family to call me when me and my wife’s twins were born, and he always just struck me as the consummate gentleman,” Erman said. “He was considerate of others. He was polite. He really cared about other people’s dignity and autonomy and he wanted to listen to all sides of an argument and really grappled with it before reaching a decision. And I guess I was consistently impressed with his breadth of interest and imagination and intense desire to do the job seriously and well.”
Erman clerked with Kennedy in the 2010-11 term. It was not a momentous term for the court with the major highlight being the high court’s decision to maintain a Ninth Circuit Court of Appeals decision on reducing California’s inmate population, he said.
When Erman learned the news of Kennedy’s retirement, he said it “made me very sad to hear he was retiring because he had been a great boss.”
Kennedy was “put in a hard spot when to retire,” because a partisan battle would ensue in any event, Erman said.
The choice was to let Trump appoint someone with a Republican majority in the Senate now, or wait until after the mid-term elections and, if Democrats win back the Senate, then the president would be battling to get a nominee confirmed with Republicans in the minority, Erman said.
“Either way it would be a move to the right or the left, and that means imperiling part of his legacy, whichever choice he makes,” Erman said.
Kennedy was “definitely a conservative,” but “in some areas he gave the left victories, or at least he didn’t go as far as his brethren,” Erman said.
Trump has already signaled he will push for confirmation of a nominee before the mid-term elections, but if Democrats win back the Senate in November then expect a major push for confirmation in the lame-duck Congress, Erman said.
Erman acknowledged that it is difficult to tell if the president will have enough votes for a hardline conservative justice since there are a handful of Republican senators who may buck Trump, but there are at least a couple of conservative Democratic senators who may have to side with Trump to get re-elected.
Kennedy was appointed to the high court following bruising battles Reagan had with the Democratic majority in the Senate. Reagan’s first appointee, Robert Bork, was rejected along party lines, and then Reagan’s second choice, Douglas Ginsburg, withdrew his nomination when news reports surfaced that he had smoked marijuana several times.