Justice Anthony Kennedy is stepping down from the U.S. Supreme Court and his replacement could be confirmed this fall. What can we expect from the nomination process? And how might the court change? U. of I. political science professor Alicia Uribe-McGuire focuses her research on the politics of Supreme Court and other federal judicial appointments. She spoke with News Bureau social sciences editor Craig Chamberlain.
Some pundits are predicting a nasty fight over the nomination, even though Democrats would seem to have little power to influence the outcome. What political considerations might influence either the choice of nominee or the two parties’ strategies?
The biggest political consideration will be the upcoming midterm elections. While the Democrats are at a disadvantage, since they have 24 Senate seats up and the Republicans only 9, this adds one more thing to the slate of election topics. With the balance of the court having the potential to really shift in a way that we have not seen in a number of years, this could add fuel for the Democrats in some of the closer races if a super conservative nominee is confirmed prior to the election.
The only power that remains with the Democrats in the nomination process is to try to influence one of the Republicans on the Senate Judiciary Committee to join them in stalling the nomination in committee.
As for the choice of nominee, we will see what President Trump decides to do. Of the 25 names on his most recent list of potential nominees, only two are more liberal/moderate than Chief Justice John Roberts, while the rest are more conservative. Thus the new swing vote will either be Roberts or the newest member of the court.
If Trump were concerned over the possible impact on midterm elections, he would likely go with a more moderate nominee. But if he is hoping to cement a conservative court, then he might take advantage of what could be limited time with a Republican Senate and try to push through a more conservative nominee.
What do you think Kennedy’s exit might mean for the court, in terms of both his votes and his voice?
Kennedy has been the swing vote on the Supreme Court since 2006, when Sandra Day O’Connor retired. Under his time as the center of the court, we have seen some victories for liberals, most specifically the expansion of gay rights. However, we have also seen some solid victories for conservatives, including the recent cases of Janus v. AFSCME on public employee unions and Trump v. Hawaii on travel bans for specific countries – as well as one of the Supreme Court’s more recent controversial decisions, Citizens United v. Federal Election Commission, on corporate and union funding of campaigns. With a rightward shift of the court, liberal victories seem less likely.
Many pundits are suggesting that Kennedy’s replacement could lock in a solid conservative majority for years, if not decades. What might be the flaws, if any, in that assessment?
Strictly by the numbers, yes, there will be a solid conservative majority for quite a while. Given that we will likely see a conservative nominee to replace Justice Kennedy, that would make a conservative bloc of five, with the most senior and eldest member of that bloc being Clarence Thomas, who is only 70 years old and does not seem likely to step down anytime soon. In contrast, the most senior members of the four-member liberal bloc are Ruth Bader Ginsburg and Stephen Breyer, who are 85 and 79, respectively.
Under this new court, we would expect to see more of the conservative victories like those that Kennedy helped decide. However, I do not think this means we will see the drastic changes that many conservatives are hoping for. For example, I would not expect this court to overturn the Obergefell v. Hodges decision on gay marriage or the Roe v. Wade decision on abortion. To do either would put the court’s legitimacy at stake and Chief Justice Roberts appears to be particularly sensitive to that, and thus unlikely to overturn those landmark decisions. So while we might see conservative expansions, I do not think we will necessarily see a reversal of liberal policies already in place.