By Jackson Richman
Immigration and welfare reform will be issues likely discussed heading into next year’s midterm elections.
Did anyone forget the possibility of another Supreme Court vacancy, which would unexpectedly cause another congressional fight?
Although the rumors regarding Supreme Court justice Another Kennedy retiring are not new, 2018 will likely consist of that rumor mill being restarted. If Kennedy retires, Trump would probably nominate a justice with the likes of Clarence Thomas and Trump’s first pick, Neil Gorsuch, whose writings have been praised by originalists like Cato Institute senior fellow in Constitutional Studies Ilya Shapiro.
Howard Slugh, a lawyer in Washington whose writings have appeared in outlets like National Review, told The National Discourse, “There has been a lot of chatter about a possible Justice Kennedy retirement, but it would be impossible to know until the end of June–which is the time when a Justice would traditionally announce a voluntary retirement.”
Hoover Institution research fellow Adam White concurred with Slugh and said, “Kennedy might retire, or he might not. Anyone who thinks they know what’ll happen is lying.”
“He is a black box,” White added.
Earlier this month, the president released an updated compilation of possible SCOTUS justices, adding five new judges to his previous list of 20 jurists.
“President Trump will choose a nominee for a future Supreme Court vacancy, should one arise, from this updated list of 25 individuals,” the White House said in a statement. “The president remains deeply committed to identifying and selecting outstanding jurists in the mold of Justice Gorsuch. These additions, like those on the original list released more than a year ago, were selected with input from respected conservative leaders.”
The list now includes judges Amy Coney Barrett of the 7th U.S. Circuit Court of Appeals; Britt Grant of the Georgia Supreme Court; Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit; Kevin Newsom of the 11th U.S. Circuit Court of Appeals; and Patrick Wyrick of the Oklahoma Supreme Court.
It is worth noting Grant is just 39 years old while Wyrick is only 36 years old. If one of them is the latest SCOTUS justice, they might be able to serve on the highest bench in the country for five decades, likely issuing decisions that would please conservatives. Justice Ruth Bader Ginsburg is 84 years old, Justice Anthony Kennedy is 81 years old, and Justice Stephen Breyer is 79 years old.
Despite the partisan battle expected if there were to be another SCOTUS vacancy, most cases before the high court will likely not fit the ideological bill. Slugh cautioned that people should not view the judiciary solely in partisan or ideological terms.
“Replacing Justice Kennedy with a more consistent originalist would likely change the outcome of some of the most high profile cases on the court–cases involving abortion for example,” Slugh said. “But, the impact would be unpredictable in a large number of cases. The vast majority of the cases that the Court hears are not political or “ideological,” and the impact would depend on the thoughts and particular understanding of the nominee.”
“The common understanding of the Court as being ‘conservatives v. liberals’ is a woefully inadequate way of describing what happens at the Court,” he added. “5-4 decisions are actually the exception rather than the rule. Many cases each year are unanimous.”
The ideological battle over the judiciary does not only apply to the high court, but also the courts below them, whose jurists serve lifetime appointments. Additionally, only 15 percent of cases ever move past a district court judge to the circuit courts. And cases decided at the circuit level are rarely heard by the Supreme Court.
Especially with Senate majority leader Mitch McConnell (R-KY) completing the work of his predecessor, former Senator Harry Reid (D-NV), to eliminate, or “nuke,” the filibuster to apply to confirming SCOTUS nominees, as long as the Republican Party controls the Senate, there is no stopping the tide of shaping the courts with conservative or originalist judges.
“Trump seems on pace to fill as many vacant lower-court seats as possible, thanks to the Senate Republicans (for reviewing the nominations as swiftly as possible) and also thanks to the Senate Democrats (who detonated the “nuclear option” to end filibusters of judicial nominations),” White said. “As long as Republicans hold the Senate, Trump will fill vacant judicial seats.”
Trump has appointed eight appellate judges, a record for the most judicial appointees this early in a presidency since Richard Nixon.