Outside the Beltway

Vulnerable Republican Senator Speculates That Justice Kennedy Will Retire This Year

Once again, there's speculation in Washington that Justice Anthony Kennedy could retire this year.

Doug Mataconis · Friday, March 9, 2018 · 2 comments

Nevada Republican Senator Dean Heller, who is facing a tough re-election battle this year, is telling supporters that he believes that Supreme Court Justice Anthony Kennedy will retire at the end of the Court’s current term:

Sen. Dean Heller (R-Nev.) said in a speech last week he believes Supreme Court Justice Anthony Kennedy will retire this summer, according to audio of the speech obtained by Politico.

“Kennedy is going to retire around sometime early summer,” Heller said in the speech, according to Politico. “Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated.”

Heller is facing a tough GOP primary challenge ahead of the 2018 midterm elections from Las Vegas businessman Danny Tarkanian.Kennedy’s possible retirement has been rumored for months.

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Kennedy, who was appointed to the court by President Reagan in 1988, is considered the most pivotal justice on the Supreme Court and is often known for casting the tie-breaking vote in contentious decisions.

While he’s among the court’s conservative justices, he has sided with his liberal colleagues at times, including on the court’s 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide.

If Kennedy were to retire, it would set up President Trump to fill a second Supreme Court seat after he nominated Neil Gorsuch last year to replace Antonin Scalia, who died in 2016, while President Obama was still in office.

This isn’t the first time that we’ve seen speculation that Kennedy might retire, of course. During the closing months of the term that ended last June, for example, there were several instances of such speculation both among Court watchers and among others in official Washington. In April of last year, for example, Senate Judiciary Committee Chairman Chuck Grassley, who arguably would be among those who might have inside information about possible retirements, dropped hints of a potential retirement at the end of the term. While Grassley didn’t mention Kennedy by name, the fact that Kennedy, who is now the longest-serving member on the Court, might finally decide to step aside now that there was a Republican in the White House. The speculation around Kennedy picked up again as the final days of the term ticked down in June, and much of it was driven by the fact that nearly all of Kennedy’s former law clerks were coming to Washington to participate in a reunion that Kennedy holds every couple of years. As I noted at the time that Grassley made his remarks and again in the last days of the term, one major signal that Kennedy would not retire could be found in the fact that Kennedy had hired a full slate of law clerks for the upcoming October 2017 Term as had all of the other Justices on the Court. While this isn’t necessarily a dead giveaway that a Justice isn’t retiring, it is a strong sign that they’re planning on being around for the new term. As it turned out, of course, there was no retirement at the end of the term by Kennedy or anyone else. Several days after the end of the June term, though, it was reported that Kennedy was advising law clerks he was interviewing for the term that begins in October 2018 that he could decide to retire at the end of October 2017 Term, which means that if they were hired they would end up being reassigned to other Justices, or potentially to whoever might be appointed and confirmed to replace him. So, it’s possible that Kennedy will retire at the end of the term, or it’s possible that he won’t. We won’t really know until there is (or isn’t) announcement.

In this particular case, I’m not sure Heller is in any position to know what Kennedy’s intentions might be. For one thing, Justices rarely share their intentions regarding retirement with anyone until they are ready to make an announcement, and Kennedy seems like the least likely Justice to break that tradition. If there have any “heads up” notices being given, they would be to people such as the President, Senate Majority Leader McConnell, or Senator Grassley, who would conduct the hearings for the confirmation of any potential successor. Heller is neither on the Judiciary Committee nor is he in the Senate leadership at a significantly high enough level that he’d be made aware of any such retirement. Finally, Above The LawKennedy has hired the full slate of law clerks has noted that he would need if he intends to defer retirement for another year. While this is not a perfect indicator of a Justice’s intentions, it’s a fairly decent sign of Kennedy’s current state of mind.

Instead, I suspect that Senator Heller’s speculation about Kennedy’s potential retirement is motivated more by his current political predicament than any inside information he may have. As I’ve noted several times before, Heller is considered to be the most vulnerable incumbent Republican Senator this year, and his seat is one of the few Republican Senate seats that Democrats seem to have a chance of picking up. In Heller’s case, there’s vulnerability in both the primary election and in the General Election. On the primary side, he’s facing a particularly strong challenge from Danny Tarkanian, the son of famed UNLV basketball coach Jerry Tarkanian. who has mounted several unsuccessful campaigns for office dating back to more than a decade. While Heller has sought to distance himself somewhat from President Trump, Tarkanian has stood firmly behind him and has also been endorsed by the likes of Sarah Palin and Steve Bannon and has also received support from what’s left of the Tea Party infrastructure that got behind the unsuccessful campaign of Sharron Angle six years ago. While the primary hasn’t been polled in quite some time, the polling that has been done shows Tarkanian performing strongly against Heller in a head-to-head matchup. Even if Heller survives that challenge, his likely Democratic opponent in November, Democratic Congresswoman Jacky Rosen, is seen by many as being a strong challenge for Heller and has performed well in the polling that has been done in a potential match between the two. Given this, it seems quite likely that Heller’s speculation is more about motivating his supporters than it is based in any real information Heller has about Kennedy’s intentions, which likely aren’t much more reliable than the rumors that have been swirling around Justice Kennedy for a year now.

As I noted, we’ll have to wait until later in the year to see what Justice Kennedy’s intentions might be. As has been the case with other recent retirements such as Justices John Paul Stevens and David Souter, Kennedy could decide to announce his retirement early in order to give the President and the Senate sufficient time to pick and consider a potential replacement who could be confirmed and on the bench in time to start the new term that starts in October. Justice Souter, for example, had privately notified the Obama White House as early as April 2009 that he intended to retire and announced his intentions publicly in early May of that year. Justice Stevens, meanwhile, announced his retirement in late April of 2010. If he does decide to retire, Kennedy could make a similar announcement early in order to give the President and Senate time to at least begin the process of naming, considering, and voting on his confirmation. Given the fact that confirmation of a Supreme Court Justice no longer requires the Senate to get past the sixty vote threshold to invoke cloture thanks to the precedents set by Harry Reid in November 2013 and Mitch McConnell last year, it’s likely that whoever President Trump would pick to replace Kennedy would be confirmed in short order. Until then, we’ll just have to wait and see.