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Kennedy's retirement gives Trump a chance to shift Supreme Court sharply right

By David G. Savage

WASHINGTON – Justice Anthony M. Kennedy, the Supreme Court centrist who for a generation has cast the deciding vote in the biggest cases, plans to retire, giving President Donald Trump a chance to shift the court sharply to the right.

Kennedy, 81, will leave the court effective July 31, the court said in a statement Wednesday.

Kennedy's decision to step down offers conservatives the opportunity they have long sought to lock in a reliable five-member conservative majority on the Supreme Court.

And for them, it comes at an ideal time, since Republicans control the Senate and have voted in unison to confirm Trump's conservative court nominees.

With five solid conservatives, the justices could repeal the right to abortion, expand protections for gun owners, narrow gay rights and strengthen the president's power to arrest and deport immigrants who are here illegally.

Kennedy's departure caps what was already one of the most difficult terms for liberals in recent memory, including defeats on issues such as public unions, Trump's travel ban and voting rights. Unlike previous years, Kennedy rarely partnered this term with the more liberal justices to form a majority.

His decision to leave at such a sensitive time – almost guaranteeing that the court will now move to the right – will undoubtedly become a key part of his legacy. It could also put some of his own decisions at risk for overturning.

Kennedy met with Trump at the White House Wednesday afternoon, shortly before making his announcement public, Trump told reporters in the Oval Office. He said Kennedy had been "a great justice" and added "hopefully we will pick someone who is just as outstanding." The nominee would come from the list of 25 potential candidates that he had released last year, Trump added.

In a letter to the president, Kennedy expressed his "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."

The leading candidates to replace Kennedy are Judge Amy Coney Barrett of Indiana, recently appointed to the 7th Circuit Court of Appeals, and Judge Brett Kavanaugh, a staunch conservative and a former law clerk for Kennedy who serves on the U.S. Court of Appeals for the D.C. Circuit.

Another contender is Judge Thomas Hardiman of Pennsylvania, who also sits on the D.C. Circuit bench and who was the runner-up last year for the opening that went to now-Justice Neil M. Gorsuch.

Senate Majority Leader Mitch McConnell said Wednesday that the Senate hoped to confirm Kennedy's replacement by the fall. With midterm elections approaching, Republicans won't want to delay in case they lose the Senate majority in November, which they currently control by only one seat.

But even with Republicans controlling the White House and the Senate, the confirmation process won't necessarily be a slam dunk, particularly if Trump selects a staunch conservative who opposes abortion. Some key Republicans, like Alaska Sen. Lisa Murkowski, will almost certainly press for a more moderate choice to ensure the survival of the landmark Roe vs. Wade abortion ruling.

Republican Party officials had been hoping that Kennedy would retire this year, believing a second successful Supreme Court confirmation would give GOP candidates a boost in November. During the 2016 campaign, the Supreme Court vacancy was a significant factor for many Republican voters.

"Practically, in a midterm election cycle, it'll be important to remind voters what's at stake," said White House legislative affairs director Marc Short.

But watching the Supreme Court shift even further to the right – with abortion rights and gay marriage hanging in the balance – could provide even greater urgency to Democrats, already frustrated by Trump's policies. Democrats also still harbor deep resentment over McConnell's refusal to consider former President Barack Obama's nominee Judge Merrick Garland after the 2016 death of Justice Antonin Scalia.

Since ascending to the Supreme Court 30 years ago, Kennedy has been its pivotal figure, splitting his votes between its conservatives and liberals in a way that has made him arguably the court's most influential justice. For years, his presence as a moderate has prevented both sides from pressing too far in one direction.

More often than not, Kennedy, an appointee of President Ronald Reagan, has sided with the conservatives. He wrote the 5-4 decision in the 2010 Citizens United case that opened the floodgates for big money to flow into political races. Earlier he played a key role in the 5-4 decision in Bush vs. Gore that ended the vote recount in Florida and preserved George W. Bush's narrow win in the presidential race of 2000.

But Kennedy also led the way for the recognition of gay rights. He spoke for the 5-4 majority in 2015 to declare that same-sex couples had a right to marry nationwide. And in 2016 he prevented conservatives from ending affirmative action in college admissions programs.

His departure puts into doubt the fate of the Roe vs. Wade decision and the right of pregnant women to choose abortion. Conservatives have never accepted that ruling as legitimate, and Republican lawmakers continue to pass state measures that would outlaw nearly all abortions.

In 1992, Kennedy surprised his fellow conservatives when he switched sides in a pending abortion case and joined with former Justices Sandra Day O'Connor and David Souter to uphold the right to abortion as a matter of precedent.

For that and numerous other positions, Kennedy became loathed by many conservatives as a traitor.

If Trump and the Republican-controlled Senate appoint a solid conservative to fill Kennedy's seat, the Supreme Court could cut back on the abortion right or overturn it entirely. Trump has repeatedly promised to only appoint judges who are committed to overturning the abortion decision.

After Kennedy leaves, Chief Justice John G. Roberts Jr. may assume a more centrist role in certain circumstances, in keeping with his oft-stated desire to build consensus and prevent the court from being viewed by the public as overly partisan. He has occasionally joined with liberal justices in significant decisions, most notably in upholding Obama's Affordable Care Act.

Kennedy arrived at the court in February 1988 after a titanic battle in the Senate between Reagan and Senate Democrats led by Sens. Ted Kennedy and Joe Biden, then chairman of the Judiciary Committee. It began in June 1987 when Justice Lewis Powell, the swing vote of his era, announced his retirement.

Despite a warning from Biden, Reagan nominated Judge Robert H. Bork, a conservative who had derided the Roe decision and several of the court's key civil rights rulings. After televised hearings in September, the Senate rejected Bork on a 42-58 vote.

Reagan then chose a younger conservative, Judge Douglas Ginsburg, but Ginsburg was forced to withdraw after reports that he smoked marijuana regularly when he was a law professor. The news was especially awkward because Nancy Reagan, the president's wife, had popularized the slogan "Just Say No" in an anti-drug campaign.

The White House was shaken by the two defeats. Reagan then turned to a young lawyer he had known from Sacramento. Kennedy's father was a well-liked lobbyist at the state Capitol, and young "Tony" Kennedy had offered legal advice to then-Gov. Reagan's team on several ballot measures.

In 1975, Reagan recommended Kennedy, then just 38 years old, for a seat on the 9th U.S. Circuit Court of Appeals. And 12 years later, Reagan turned to Kennedy for the vacant Supreme Court seat. He won unanimous confirmation from the Senate.

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