The retirement of Justice Anthony Kennedy, the key swing vote on the U.S. Supreme Court, gives President Donald Trump a coveted opportunity make the second high court appointment of his term and sets the stage for one of the most contentious confirmation battles in decades.
During his 30 years on the bench, Kennedy, an 81-year old, Republican appointee, has often broken ranks with his conservative colleagues to cast the decisive vote in a string of consequential cases, including those involving abortion, gay rights and voting rights.
His retirement becomes effective at the end of July and whoever Trump picks to replace him could push the bench further to the right.
While conservatives see a rare opening for another right-leaning high court appointment, liberals, are vowing to stop it, fearing a conservative-dominated court could reverse precedents on abortion and gay rights, among other decisions.
Among his most noteworthy decisions, Kennedy co-authored a 1992 ruling that reaffirmed women’s constitutional right to abortion, and in 2015 he wrote the majority opinion in a landmark decision that legalized same-sex marriage in the United States.
Sarah Warbelow, legal director with the Human Rights Campaign, a Washington-based LGBTQ advocacy organization, said Kennedy “was really the architect behind some of the most critical decisions impacting our lives.”
President Trump has called Kennedy a man of “tremendous vision” and said he’d “immediately” begin the search for a replacement.
The minimum number of votes required for a Supreme Court justice nomination used to be 60. But Republicans changed the rules last year to reduce the minimum to a simple majority of 51, the number of members they have in the Senate.
Last year, Trump nominated conservative judge Neil Gorsuch to replace the late Antonin Scalia, reinstating the court’s 5-4 conservative majority and winning a string of favorable rulings.
Democrats fear that Trump may try to force a nomination through the Senate before the November Congressional election, which could decide which party gets to control the Senate and the House of Representatives.
Senate Minority Leader Chuck Schumer urged Republicans on Wednesday not to consider a vote for Trump’s next Supreme Court pick before the elections, reminding them of their refusal to hold a vote in 2016 for then President Barack Obama’s nominee, Merrick Garland.
“Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader (Mitch) McConnell thought they deserved to be heard then. Anything but that would be the absolute height of hypocrisy,” Schumer said in a statement.
In recent years, the Supreme Court has decided about 20 percent of cases by a 5-4 vote, with the outcome often turning on Justice Kennedy’s vote, according to Charles Geyh, a professor at the Indiana University Maurer School of Law.
Justice Kennedy “was at the center of many of those decisions and many of those decisions are among the most important decisions that the Supreme Court has made,” Geyh, who is an expert on judicial selection, said.
Whoever ends up joining the court, he said, Chief Justice Roberts is likely to serve as a force of moderation.
“Roberts is concerned about the legacy of the court, he’s concerned about a court that is perceived as upholding the court of law, and he’s concerned about a public perception that court is just a group of politicians in robes,” Geyh said.