WASHINGTON – U.S. Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, setting off what could be one of the most contentious judicial confirmation battles in American history.
Kennedy is known as the swing vote on the high court, meaning that a conservative replacement could shift the body to the right for a generation. That could have huge implications for cases expected to make their way to the Supreme Court in coming years, including battles over the rights of businesses to make “religious refusals,” a reckoning over the issue of partisan gerrymandering and new restrictions on the right to abortion — all issues that would reverberate loudly in Texas.
The retirement is also a likely advantage for Texas in several lawsuits against the federal government currently winding their way through the federal courts system, including a case that aims to end the Deferred Action for Childhood Arrivals program and another challenge to the Affordable Care Act.
Both Texas senators, Republicans John Cornyn and Ted Cruz, serve on the Senate Judiciary Committee and are all but certain to play central roles in the questioning of whoever President Donald Trump nominates to replace Kennedy.
In a Fox News interview Wednesday, Cruz praised the moment as “an historic day.”
“What the Gorsuch pick did at the very best was maintain the status quo,” Cruz said. “The Justice Kennedy vacancy, on the other had, is an opportunity to really have a profound impact on the court that could last for decades.”
Democrats, who are still bitter that U.S. Senate Majority Leader Mitch McConnell refused to allow a vote for the previous open seat during the Obama administration, should be expected to fight this nomination tooth and nail.
But they have little recourse. McConnell and his Republican colleagues lifted the filibuster rule during the 2017 nomination of current Justice Neil Gorsuch, meaning a simple majority is all that the GOP will need to push through the president’s nominee.
President Donald Trump said Wednesday that he’d choose his next nominee from a previously circulated shortlist of Supreme Court contenders. Cruz gave an early endorsement to one of his colleagues, who appears on that list: U.S. Sen. Mike Lee, R-Utah.
“The single best choice President Donald Trump could make to fill this vacancy is Senator Mike Lee,” Cruz said. “I think he would be extraordinary.”
Cornyn chimed in later in the day with a news release.
“I hope the President will choose a principled, well-qualified nominee committed to upholding the rule of law and interpreting the Constitution faithfully, rather than rewriting it,” he said. “I also hope Democrats will consider whomever the President chooses on the merits and not subject the nominee to unfair, personal attacks.”
“I look forward to voting to confirm Justice Kennedy’s successor this Fall.”
Trump’s shortlist also includes one Texan, former Texas Supreme Court Justice Don Willett, who was confirmed in December to a seat on the conservative 5th U.S. Circuit Court of Appeals.
Willett is perhaps best known for his outspoken Twitter presence, an accountthat has quieted slightly since his nomination last summer to the federal bench. Questions about Willett’s social media accounts dominated his confirmation hearing in November, with some senators suggesting that posts Willett considered lighthearted had in fact shown bias on issues like the rights of transgender students.
He told the committee that his tweets from the federal bench would “be above the fray” and focus largely on civic education.
Over the last 30 years, Kennedy emerged as a critical centrist on an increasingly polarized court, making him an important vote on several Texas cases. He wrote for the majority in the 2003 Lawrence v. Texas decision, a sweeping ruling that struck down Texas’ ban on gay sodomy and took 13 similar laws along with it. Two years ago, Kennedy sided with the court’s more liberal justices to strike down Texas abortion restrictions and uphold affirmative action policies at the University of Texas at Austin.
During the term that ended Wednesday, Kennedy sided with Texas in a case upholding the state’s political maps, which a district court had said intentionally discriminated against voters of color.
by Abby Livingston and Emma Platoff, The Texas Tribune