Justice Anthony Kennedy’s timing for his retirement, announced last week, significantly raises the odds that his successor will not be in his mold. Better that he would’ve waited until after the November elections to see if the Democrats regain control of the Senate, thereby ensuring that his successor would be a bipartisan, consensus choice, rather than another predictable ideologue.
Perhaps it’s because he never welcomed, or deserved, the rational role we so often ascribed to him.
As everyone knows, Kennedy has long been regarded as “the” swing jurist because of how often he played the role of tiebreaker on a court composed of nine members.  

He wrote the majority opinion in the 5-4 Citizens United decision, which opened the door to unlimited campaign spending by corporations and unions.  Kennedy was also the fifth vote in: Bush v. Gore, which decided the 2000 election for George W. Bush; Heller v. District of Columbia, which recognized an individual’s constitutional right to own guns; and Shelby County v. Holder, which struck down a significant portion of the Voting Rights Act. All pretty conservative stuff.

But he was also the fifth vote in a 2016 case that would have drastically cut the number of abortion clinics in Texas, effectively upholding Roe v. Wade, as he did in 1992, with his deciding vote in Casey v. Planned Parenthood. He was also the fifth vote in Obergefell v. Hodges, which found a constitutional right to same-sex marriage. And he was the tiebreaker in a case that bars capitol punishment for crimes committed before the age of 18. 

Overall, Kennedy voted on the winning side of close decisions 76 percent of the time over his career — indeed, he formed those majorities. That’s why we credited him with being the stabilizing influence, the independent on a court where it seems every other justice’s vote was predictable.  But now that perception seems contradicted by the timing of his exit, which was announced in a letter addressed: “My dear Mr. President.”

The midterm map favors the Republicans, so maybe a delayed decision would not have mattered. The Republican majority in the Senate is currently two votes, meaning that the change of just one seat will create a 50-50 tie requiring Vice President Pence’s intervention. Twenty-six of the Democrats’ 49 seats are up for grabs; only nine of the GOP’s 51 are in play. That means Democrats need to win 28 of the 35 on the line to take control, a tall order.

And we can thank the chicanery of both Harry Reid and Mitch McConnell for the fact that now only 51 votes are needed to confirm a Supreme Court justice. All eyes in the coming weeks will therefore be on Lisa Murkowski, Bob Corker, Jeff Flake — and especially Susan Collins. Collins said on CNN last weekend that she would oppose any Supreme Court nominee who favors overturning Roe v. Wade, but surely she knows the confirmation process never allows such clear delineation. Too bad the nation won’t be laser-focused on all 35 of the Senate seats soon in play instead of just those four Republicans.

Misha Tseytlin, the Wisconsin solicitor general and a former law clerk for Kennedy, disagreed with me by email.

“Justice Kennedy served honorably on the Supreme Court for 30 years, making him one of the longest-tenured Justices in modern times.  He well-earned his retirement and it certainly makes sense for him to announce that retirement at the traditional time in the year: at the end of the Court’s Term in June, so that his replacement can serve starting the next Term in October (the Court is in recess from late June through September).  A Justice timing their retirement to take place in the middle of the Court’s Term, specifically to make the seat an election issue, would be, as far as I know, unprecedented…. The citizens of this country will be voting for Senators in November 2018, just as they vote for Senators every two years. In casting those ballots, they should use their First Amendment rights to debate the kind of Justices that they would like to see on the Supreme Court — those who will interpret the Constitution according to its text and original public meaning, those who will legislate their personal views from the bench, or some other approach — and they should ask candidates for Senate their views on this critical issue.
After all, even though Justice Kennedy’s replacement will likely be confirmed before November, the Senator you elect from your State in a couple of months is very likely to vote on the confirmation of a Justice (and, probably, multiple Justices) during that Senator’s tenure.”

Given the advanced age of some justices, he may be right. That doesn’t change that by leaving on the Republicans’ timetable, Kennedy has sown the seeds of the reversal of much of what he stood for. If instead he had waited until after the fall elections, and if the Democrats had regained control of the Senate, chances are the next justice would be somebody like Anthony Kennedy.