Why Did Justice Kennedy Retire Now? – The More Or Less Likely Answers
by Tony Wyman
For the only perceived swing-vote justice on the United States Supreme Court to suddenly announce his retirement just months before the crucial November elections couldn’t be worse news for Democrats hoping a Blue Wave is going wash away Republican majorities in the House and Senate.
Now, thanks to the opening Justice Anthony Kennedy has made, the GOP has an argument to make to get right-wing and center-right voters to the polls in November: turn out to vote so we can get a conservative judge on the Court.
Sure, Republicans are floating names and talking about getting a candidate before Congress soon, but, if they are smart, they will take their time and make this issue the one that motivates their base to show up in November.
As Republican numbers continue to drop in the Trump Era, the GOP needs all the voters it can muster to hold off motivated Democrats and this is one issue that can help them. A lot.
That is if there isn’t a scandal brewing under the surface of why Justice Kennedy decided to retire in the first place. The Left, caught completely off guard by Mr. Kennedy’s retirement, has floated a number of conspiracy theories over the past several days, some that even liberal Slate Magazine called “liberal delusion.”
There have been accusations leveled in far left circles, like Democracy Now!, that claimed Justice Kennedy’s son, Justin Kennedy, was tied to a scandal involving $1 billion in loans he made to Mr. Trump that kept the family businesses afloat during the worst days of the Great Recession.
During the time Justin Kennedy served as a senior officer at the institution, Deutsche Bank became the most important lender to Mr. Trump during a period when no other financial giants would touch the Trump business empire because of the company’s history of bad business decisions, bankruptcies and failing to pay back their debts.
But even Salon.com admitted “… there’s no proof that Justin Kennedy’s business relationship with Trump influenced his father’s decision to announce his retirement at a time when Trump is positioned to be able to pick his successor — and after a term in which Kennedy handed conservatives many victories in cases dealing with issues like Trump’s travel ban and abortion…”
Neera Tanden, of president of the Center for American Progress, went as far as suggesting there was some inducement that she never spelled out between the Justice and the President that led to Mr. Kennedy leaving his post. In a tweet, she said, “Just to state this: Justice Kennedy’s son gave a billion dollar loan to Trump when no one would give him a dime, and Justice Kennedy has been ruling in favor of the Trump Administration position for 2 years as the Court decides 5-4 case after 5-4 case.”
Snopes.com, the fact-checking website that seeks to prove or disprove theories finding light in the media or on the Internet, had this to say about the suggestion there exists ulterior motives associated with Justice Kennedy’s retirement:
The details of this conspiracy theory were somewhat hazy, most versions of it seemingly implying that President Trump somehow leveraged his financial connections with Kennedy’s son Justin to convince or coerce the jurist to retire ahead of the November 2018 U.S. mid-term elections (during which Democrats might pick up enough Senate seats to block confirmation of Trump’s preferred nominee).
The most coherent form of the conspiracy theory posited that Kennedy’s retirement was a sudden and unexpected event, a strategic move intended to allow Trump to nominate a friendly successor who would vote favorably on any issues involving Justin Kennedy that might come before the court as a result of the ongoing Mueller investigation into Russian election interference (whereas Kennedy would have to recuse himself from such issues if he remained on the bench).
But the reality is Justin Kennedy left Deutsche Bank in 2009, well before the bank was involved in laundering money for the regime of Vladimir Putin and years before Donald Trump was a serious political candidate.
Positing that Mr. Trump could somehow use information he possesses that Mr. Kennedy did something wrong in connection to loans to Russia and to the Trump companies to force Justice Kennedy to retire early would only be possible if the president was willing to reveal the information to the public and incriminate himself, as well. Anyone with even a passing knowledge of President Trump knows the idea he would harm himself in the interest of the public is absolutely ludicrous.
Did the Gorsuch Nomination Factor In?
So, why did Justice Kennedy retire earlier than expected, shortly after announcing new clerks for the upcoming Court session? The answer appears to be that he believes his legacy as a conservative justice stands a better chance of being protected while Donald Trump is president.
Vanity Fair argues that the Neil Gorsuch nomination was intended, in part, as a message to aging conservatives on the Court that the Trump Administration would replace them with other justices who held the same political views as men like Antonin Scalia.
Perhaps most important, Trump used the nomination of Neil Gorsuch to demonstrate to Kennedy how his own legacy could be preserved. He ensured that Kennedy was involved in swearing in Gorsuch, who used to clerk for him—something that gave Kennedy “virtually parental pride,” said Vanity Fair. “After Gorsuch was sworn in, the White House made sure to float two more potential Supreme Court candidates—Judge Brett Kavanaugh of the United States Court of Appeals for the District of Columbia Circuit and Judge Raymond Kethledge—both of whom also clerked for Kennedy.
The message to Justice Kennedy from the White House, as far back as the death of Justice Scalia and the appointment of Justice Gorsuch, clearly was “we will replace you with another justice who will carry on where you left off.”
Is Kennedy Really a Conservative or a Swing-Voter?
But, isn’t it true that Justice Kennedy was a “swing-vote” on the Court? A center-right member of the Court? The reality is, no. He has been a strong conservative during his time on the bench, despite his comments about the rights of homosexuals and a small number of high profile votes where he joined liberals on the Court.
The truth is Justice Kennedy voted with conservatives on close cases 71.3% of the time, admittedly less than any of the other conservatives on the bench. But, when compared to the liberals on the Court, Justice Kennedy’s record of voting with conservatives is stark. Justice Stevens voted more often with conservatives on close cases, but he only sided with the right 22% of the time, nearly 50-points less than Justice Kennedy.
“An analysis of Kennedy’s voting record during his three decades on the court shows that he voted with the court’s right wing in the majority of cases — including controversial, closely decided cases — throughout his career,” said Fivethirtyeight.com. “And although he was likelier to side with the liberals once he became the court’s swing vote, legal experts say that he occupied the ideological middle ground on relatively few issues.”
So, as unpalatable as it may be to some opponents of the Trump Administration, it appears Justice Kennedy decided to retire now for the simple reason he believes the judge the president nominates and Congress approves will insure the Supreme Court enjoys a long period of domination by largely conservative legal thinkers.
