One week ago, the persistent rumor that Justice Anthony Kennedy’s retirement was imminent was put to rest when the 2016-2017 Supreme Court term ended with no announcement from the 80-year-old jurist. Now it’s back.
Rick Hasen of Election Law Blog noticed this new clue hiding in an NPR story on Justice Neil Gorsuch that was published on Saturday. Nina Totenberg reported:
But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.
Clerk hiring can offer clues about whether a justice is mulling retirement. Current justices get four clerks each and retired justices get one, so sometimes justices only hire one clerk if they don’t think they’ll finish out their term. Though, as Above the Law’s David Lat explained, that’s not a hard and fast rule:
Now, hiring clerks for 2017-2018 and 2018-2019 is not dispositive evidence that a justice will remain on the bench. There’s a nice tradition at the Court of justices picking up “orphaned” hires of their colleagues (which is what happened with Justice Antonin Scalia’s displaced clerks), so the clerks aren’t necessarily left in the lurch. But as a matter of collegiality and consideration — and whether or not you like his jurisprudence, Justice Kennedy is collegial and considerate — it’s not nice to impose upon your colleagues by hiring clerks you know will never work for you, putting pressure on these colleagues to sacrifice their own hiring discretion to scoop up your leftovers (because of SCOTUS tradition).
It could be that Kennedy is taking things one term at a time. But if he retires at the end of June 2018 just before the midterms, it would definitely allow Trump enough time to appoint his successor, no matter what happens to the GOP in November of 2018. Mitch McConnell has already eliminated the filibuster for a Supreme Court nominee, so Dems wouldn't be able to stop Trump. The Senate could have that all wrapped up in September or next year, and that would basically be it for civil rights, voting rights, reproductive rights, and the New Deal. All that would come to an end by 2020.
If Trump is able to appoint a second justice like Neil Gorsuch, America will suffer for decades and may never recover, even if Trump is removed from office (and as Judd Legum reminds us, Trump's removal remains an dangerous and damaging fantasy among liberals. He's not going anywhere.) None of the Trump drama will matter because the Roberts Court will make sure we lose everything since Jim Crow was struck down.
So pray that Kennedy, Ginsberg and Breyer make it to 2021 and we get a Democratic president and Senate by then, because if Trump is allowed to replace any of the three, the America you know will be gone overnight.