Justice Anthony Kennedy testifies in 2012 about the Supreme Court budget. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

It did not take long for the Washington nomination machine to kick into gear Wednesday afternoon when U.S. Supreme Court Justice Anthony Kennedy announced he would retire as of July 31.

The press release from the court and a copy of Kennedy’s letter to President Donald Trump were sent to reporters at 1:59 p.m.

Four minutes later, statements from two key players helping the Trump administration advance his judicial nominations landed in the email boxes of journalists.

“Justice Kennedy was a transformative justice during a period of great transition on the Court, demonstrating the incredible impact one justice can have,” wrote Carrie Severino, chief counsel of the Judicial Crisis Network and a former clerk to Justice Clarence Thomas. “In cases like Obamacare, Heller, and Citizens United, Justice Kennedy was a passionate defender of individual liberty and the separation of powers. We thank him for his service to our country and we look forward to the nomination and confirmation of his successor.”

Leonard Leo, a longtime leader of the Federalist Society who worked on the nomination of Neil Gorsuch, wrote, “President Trump’s list of potential nominees for this vacancy includes many of the very best judges in America, judges who have records of being fair and independent and applying the Constitution as it was written. I expect the nominee to be like Justice Gorsuch, to demonstrate excellence in every respect, and to earn widespread support from the American people, and bipartisan support for confirmation in the Senate.”

The statement also noted that as of Wednesday, Leo was taking a leave of absence from his job as executive vice president of the Federalist Society—a sign that he may again be helping the Trump administration on the high-stakes nomination of Kennedy’s successor.

Conservative leaders have not always praised Kennedy so effusively. In his role as swing vote, he has joined liberals with some frequency over the years. But in the term just ended, Kennedy sided with his conservative colleagues in all of the court’s 5-4 decisions. Still, the prospect of a younger person replacing the 81-year-old Kennedy is likely to energize conservatives in the months ahead.

It was unclear how and when other Washington insiders learned of Kennedy’s plans to retire. Several former clerks indicated they learned the news from Twitter or media outlets.

The retirement plans of several recent justices have leaked out before being announced, but Kennedy appears to have held the news close to the vest. The presence of his wife Mary in the court on Wednesday suggested to some that an announcement might be coming.

Liberal groups also chimed in Wednesday, but not as quickly as Severino and Leo.

“The stakes in the upcoming battle over Justice Kennedy’s replacement on the Supreme Court could not be higher,” said Elizabeth Wydra of the Constitutional Accountability Center. “He has been the single vote preventing the court from overturning Roe v. Wade; the single vote ensuring that LGBTQ couples have the right to marry; the single vote ensuring that universities can create diverse student bodies through race-conscious admissions programs; and many more.”

Dawn Laguens, executive vice president of Planned Parenthood Federation of America, said in a statement, “The significance of today’s news cannot be overstated: The right to access abortion in this country is on the line… President Trump has promised to only appoint justices who will overturn Roe v. Wade.”

Nan Aron, president of the Alliance for Justice, foreshadowed the fierce battle ahead over the nomination of Kennedy’s replacement: “We anticipate that the mobilization of people from all walks of life who are concerned about the next Supreme Court nomination will be the biggest of its kind in our history, and we urge the White House to respect the desire of the American people for a justice who will uphold hard-won rights and freedoms, not turn back the clock.”


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