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Retiring Justice Anthony Kennedy often the man in the middle

  • Supreme-Court-Kennedy-Retires

    FILE - In this Oct. 3, 2013, file photo, Supreme Court Justice Anthony Kennedy speaks to faculty members at the University of Pennsylvania law school in Philadelphia. The 81-year-old Kennedy said Tuesday, June 27, 2018, that he is retiring after more than 30 years on the court.(AP Photo/Matt Slocum, File)

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WASHINGTON (AP) — Justice Anthony Kennedy, the Supreme Court's decisive man in the middle on abortion, gay rights and other contentious issues, announced his retirement, giving President Donald Trump a golden chance to cement conservative control of the nation's highest court.

The 81-year-old Kennedy, often a voice of moderation over three decades on the court, provided the key vote on such closely divided issues as affirmative action, guns, campaign finance and voting rights in addition to same-sex marriage and the right to abortion.

Kennedy informed his colleagues of his plans, then went to the White House to meet with Trump, where the president said they talked for half an hour about a potential successor and other topics. The retirement, announced Wednesday, will take effect at the end of July.

Trump praised Kennedy as a man of "tremendous vision" and said his search for a new justice would begin "immediately."

Without Kennedy, the court will be split between four liberal justices who were appointed by Democratic presidents and four conservatives who were named by Republicans. Trump's nominee, likely to give the conservatives a solid majority, will face a Senate confirmation process in which Republicans hold the slimmest majority but Democrats can't prevent a vote.

Several former law clerks have said that Kennedy, a nominee of President Ronald Reagan, preferred to be replaced by a Republican. If he had waited, and if Democrats had taken control of the Senate in November, Trump could have found it more difficult to get his choice confirmed.

The other two older justices, Ruth Bader Ginsburg, 85, and Stephen Breyer, 79, are Democratic appointees who would not appear to be going anywhere during a Trump administration if they can help it.

Trump's first high court nominee, Neil Gorsuch, was confirmed in April 2017. If past practice is any indication, the president will name a nominee within weeks, setting in motion a process that could allow confirmation by the time the court reconvenes in early October.

Trump already has a list of 25 candidates — 24 judges and Utah Sen. Mike Lee — and has said he would choose a nominee from that list.

Abortion is likely to be one of the flashpoints in the nomination fight. Kennedy has mainly supported abortion rights in his time on the court, and Trump has made clear he would try to choose justices who want to overturn the landmark Roe v. Wade decision. Such a dramatic ruling may not be immediately likely, but a more conservative court might be more willing to sustain abortion restrictions.

"If Donald Trump, who has promised to overturn Roe v. Wade, picks someone who is anti-choice, the future of Roe v. Wade is very much in question," said David Cole, national legal director for the American Civil Liberties Union.

A look at some potential candidates to replace Kennedy

By LAURIE KELLMAN, Associated Press

WASHINGTON (AP) — The search for Supreme Court Justice Anthony Kennedy's replacement has begun. President Donald Trump said Wednesday he'll choose a replacement from "an excellent list" of 25 candidates.

Kennedy on Wednesday announced his retirement after three decades on the court, giving Trump a chance to solidify a conservative majority on the high court. Doing so was one of his campaign promises in 2016. His confirmation of Justice Neil Gorsuch last year was considered a key victory by anti-abortion groups and other conservatives.

A look at a few judges who are considered to be top candidates to replace the 81-year-old Kennedy. All appear on Trump's list.

THOMAS HARDIMAN

Hardiman went to the University of Notre Dame as the first person in his family to go to college. He financed his law degree at the Georgetown University Law Center by driving a taxi. He became a federal district judge at 37 and was appointed to the 3rd Circuit in 2007. He turns 53 on July 8. Hardiman has sided with jails seeking to strip-search inmates arrested for even minor offenses and has supported gun rights. He dissented in a 2013 case that upheld a New Jersey law to strengthen requirements for carrying a handgun in public. A Massachusetts native, Hardiman settled in Pittsburgh, where his wife comes from a family of prominent Democrats.

RAYMOND KETHLEDGE

The federal appeals court judge from Summit, New Jersey, graduated from the University of Michigan and its law school. He was counsel to Republican Sen. Spencer Abraham of Michigan until 1997 and clerked for Kennedy the following year. He was nominated to the 6th U.S. Circuit Court of Appeals in 2006. He's 51.

AMY CONEY BARRETT

The appellate court judge from New Orleans, born in 1972, graduated from Rhodes College and Notre Dame Law School. She clerked for Supreme Court Justice Antonin Scalia in 1998 and served as a law professor at her alma mater, George Washington University and the University of Virginia.

BRETT KAVANAUGH

The Yale-educated appellate court judge for the District of Columbia recently wrote a dissent when his colleagues allowed an immigrant teen in U.S. custody to have an abortion. Kavanaugh also clerked for Justice Kennedy. He served as an associate independent counsel during the Whitewater investigation into the Clintons' land deal, as well as in the White House under President George W. Bush. He's 53.

AMUL THAPAR

The federal appeals court judge from Kentucky is close to Senate Majority Leader Mitch McConnell. He's an alumnus of Boston College and the University of California, Berkeley, law school. Thapar was the first judge nominated by Trump to a district or appeals court. He's 49.

WILLIAM PRYOR JR.

The federal appeals court judge from Mobile, Alabama, is also a former attorney general of the state and an alumnus of Northeast Louisiana University and Tulane University law school. In 2003, he called for the removal of Alabama Chief Justice Roy Moore, who had refused a federal court order to remove the Ten Commandments from a judicial building. Trump backed Moore in a Senate race last year despite charges of sexual misconduct with young women. Moore lost the race.

President George W. Bush nominated Pryor to the federal appellate court in 2004. President Barack Obama named him to the U.S. Sentencing Commission in 2013. Pryor is 56.
Interest groups across the political spectrum are expected to mobilize to support and fight the nomination because it is so likely to push the court to the right.

Republicans currently hold a bare 51-49 majority in the Senate, although that includes the ailing Sen. John McCain of Arizona. If Democrats stand united in opposition to Trump's choice, Senate Majority Leader Mitch McConnell of Kentucky can lose no more than one vote. If the Senate divides 50-50, Vice President Mike Pence could break a tie to confirm the nominee.

Prominent on the list of possible successors are Judges Thomas Hardiman of Pennsylvania and William Pryor of Alabama, who were seriously considered for the seat eventually filled by Gorsuch, and Judge Brett Kavanaugh, who serves on the federal appeals court in Washington. Judges Amy Coney Barrett, whom Trump named to the federal appeals court in Chicago, and Raymond Kethledge, a former Kennedy law clerk who serves on the appeals court based in Cincinnati, also may be considered.

Kavanaugh is a longtime Washington insider, also a onetime Kennedy clerk and a key member of independent counsel Kenneth Starr's team that produced the report that served as the basis for President Bill Clinton's impeachment. In October, Kavanaugh dissented when his court ruled that a teenage migrant in federal custody should be able to obtain an abortion immediately.

Regardless of who replaces him, Kennedy's departure will be a major change for the high court, where he has been the crucial swing vote for more than a decade. He has sided with the liberal justices on gay rights and abortion rights, as well as some cases involving race, the death penalty and the rights of people detained without charges at the Guantanamo Bay naval base. He has written all the court's major gay-rights decisions, including the 2015 ruling that declared same-sex marriage is a constitutional right nationwide.

However, he also has been a key vote when conservatives have won major rulings on the outcome of the 2000 presidential election in favor of George W. Bush, on gun rights, limiting regulation of campaign money and gutting a key provision of the landmark federal Voting Rights Act.

There were no outward signs that Kennedy was getting ready to retire. He had hired his allotment of four law clerks for the term that begins in October and he is planning to spend part of the summer as he typically does, teaching a law school class in Salzburg, Austria.

Few obstacles seem to stand in the way of confirming Kennedy's replacement before the court reconvenes in October. Republicans changed the rules during Gorsuch's confirmation to wipe out the main delaying tactic for Supreme Court nominees, the filibuster, and the need for 60 votes to defeat it.

Graphic: Supreme Court Confirmation Process


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