WASHINGTON, D.C.—Rumor has it that Justice Anthony Kennedy is telling potential new law clerks that he is considering retiring from the Supreme Court next summer, setting up an epic showdown for the 2018 midterm elections.
Pundits predicting a June 2017 announcement of Justice Kennedy’s retirement were embarrassed when the last day of the Court’s annual term ended on June 26 with no announcement.
Justices can retire at any time, and an announcement could still be forthcoming. But at this point there is no reason to expect the justice—who turns 81 this month—is retiring any day now.
But rumors started circulating around Washington last week that Justice Kennedy is interviewing candidates to serve as his law clerks for the annual clerkship term starting in July 2018, and that he is giving those candidates notice that he is contemplating retiring next summer.
Justices get four law clerks per year, and retired justices still get one clerk, because they sometimes volunteer to sit on federal appeals. All of those clerks work from July to July, to encompass a single Supreme Court annual term, which begins on the first Monday of each October, and lasts until the final week of June. Justices typically hire their clerks six to 18 months in advance of the July start date.
Such a 2018 retirement date would work well for Justice Kennedy. It would allow him to have a full year with his former clerk, Justice Neil Gorsuch, sitting with him on the bench. Justices try to stagger their retirements to maintain continuity for the Court and stability for the law.
Moreover, because Republicans will hold the Senate next summer, he is guaranteed in a post-nuclear-option era that President Donald Trump’s nominee to replace him could be confirmed. Even though there is essentially zero chance that Democrats could take control of the upper chamber, a 2018 retirement nonetheless eliminates even the theoretical possibility of gridlock that could result in a prolonged vacancy on the nation’s highest court.
And if President Trump nominates someone with such a proven conservative record that a couple moderate Republicans balk and do not immediately vote to confirm, if the 2018 midterms become a referendum on seating another staunch conservative on the Supreme Court, that dynamic could boost the chances of additional Republican pickups to give President Trump the Senate votes he needs to confirm his nominee.
Politically, this issue will supercharge President Trump’s supporters, which could help in several close Senate contests. Americans tend to prefer judges who adhere to the law as written even when the judge disagrees with the politics or policy of a situation, and Justice Gorsuch’s appointment has proven to be one of President Trump’s greatest political successes. The president has shown himself to be a master at using this issue on the campaign trail.
Countless issues, including free speech, religious liberty, the Second Amendment, abortion, marriage, the environment, the death penalty, state sovereignty, and immigration, often hang by a 5-4 margin at the Supreme Court. Justice Kennedy is almost always the swing vote on this narrowly divided Court. The fight over his successor could be one for the history books.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.