U.S. Supreme Court Justice Anthony Kennedy. Credit: Diego M. Radzinschi / National Law Journal

Justice Anthony Kennedy’s retirement has set the stage for perhaps the most consequential Supreme Court nomination in a generation, handing the Trump administration an opportunity to cement the conservative majority at the Marble Palace.

After all, to replace Kennedy is to reshape the court. It was Kennedy, in case after case, who found himself at the center of the divided court—his vote often making the difference between whether his liberal or more conservative colleagues carried the day.

Advocates on both sides of the political spectrum found aspects of Kennedy’s record to scorn and appreciate. And so, in the initial hours after Kennedy announced his retirement, lawyers quickly emerged to share their thoughts on the longest-serving of the sitting justices—or issue statements that looked ahead to what promises to be a bitter confirmation battle.

Here’s a roundup of some of the more notable responses to Kennedy calling it quits:

>> Wisconsin Solicitor General Misha Tseytlin, a former Kennedy clerk: “Justice Kennedy devoted his tenure on the court to defending passionately the core liberties and structural protections of our Constitutional system, while also scrupulously honoring the principles of mutual respect and collegiality. I learned much from Justice Kennedy about how to conduct myself as a lawyer and, even more importantly, as a person.”

>> ACLU legal director David Cole: “We call on the president and the Congress to appoint a nominee who will respect the Constitution, the institutions of our democracy, and the rights of the most vulnerable among us: those whose rights can be lost in the political shuffle. This appointment is about our future as a nation of laws and of people whose humanity and rights need to respected.”

>> Texas Solicitor General Scott Keller, a former Kennedy clerk: “From defending free speech, to recognizing an individual’s right to keep and bear arms, to prohibiting partial-birth abortion, and to finding all of Obamacare unlawful, Justice Kennedy leaves a legacy of limiting federal power and protecting individual liberties. This administration already has a list of outstanding jurists to select a worthy successor. And just like the terrific selection of Justice Gorsuch, I am confident that this administration will honor Justice Kennedy’s legacy by choosing another nominee dedicated to the rule of law.”

>> Securities and Exchange Commission Chairman Jay Clayton, a former Sullivan & Cromwell partner:  “I want to congratulate Justice Kennedy on his distinguished career and offer my profound gratitude for his unwavering commitment to the Constitution and service to the American people. Justice Kennedy’s work over 30 years on the Supreme Court stretched far and wide, including furthering the interests of investors and enhancing the functioning of our markets.” He added: “On a personal level, it was my great privilege to be sworn into office by Justice Kennedy and to receive his counsel on public service. We should all care so deeply about America and its people.”

>> Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund: “This is a monumental moment for our country. The very integrity of our justice system and the rule of law will be affected by the confirmation of a new justice to the Supreme Court. We have seen the judges that President Trump has advanced for lower courts. We have seen the extreme jurisprudence of Justice Gorsuch—who was President Trump’s first nominee for the court. We can have no confidence that President Trump will present a nominee with a record of commitment to racial equality and justice. And so every American must invest themselves in ensuring that Congress does its job—which, in this case, means not considering any nominee this year, and voting down any nominee who does not represent the ideals of our democracy or is otherwise unqualified to serve on the highest court in our nation. It is critical that Congress fight for the American people in the process of addressing this open seat on the Court.

>> Jamil Jaffer, founder of the National Security Institute at George Mason University’s Antonin Scalia Law School and a former Gorsuch clerk: “Justice Anthony M. Kennedy is one of the leading thinkers on the Court, and he is well-respected because he focused on the arguments made by counsel, listens closely and asks thoughtful questions at oral argument, and thinks carefully through each case, trying to reach the appropriate outcome in each matter before him.” He added: “The president now has a unique opportunity to appoint another Justice like Neil Gorsuch who respects the rule of law and understands the carefully circumscribed role of judges in our constitutional system which is to interpret the law, not make it. After all, to quote Justice Gorsuch, ‘[i]n our legal system, judges are supposed to wear robes, not capes.’”

>> Nancy Northup, president and CEO of the Center for Reproductive Rights: “Justice Kennedy’s retirement is devastating news at a divisive time in our nation and on the Supreme Court. A justice committed to liberty, equality, and dignity is needed more than ever. President Trump has promised to nominate Supreme Court justices who will overturn Roe v. Wade. That promise should set off alarm bells for anyone who cares about women—and the Constitution.”

>> Leonard Leo, outside adviser to President Trump on judicial nominations and as of today on leave from his role as executive vice president of the Federalist Society: “Justice Kennedy is a most dedicated public servant, having served on the high court for over 30 years. He has cared deeply about the relationship between the Constitution and individual liberty, and played a key role in helping to shape the Supreme Court’s conservative jurisprudence in the areas of campaign finance and the First Amendment, gun rights and the Second Amendment, the separation of powers and federalism, and reasonable restrictions on abortion, such as the partial-birth abortion ban. I thank him for his service and for the sacrifices he and his family have made in more than three decades.”

>> Andrea Picciotti-Bayer, legal advisor with The Catholic Association: “With Justice Kennedy’s retirement, we look forward to President Trump’s prompt nomination and the Senate’s swift confirmation to fill the vacancy. The president’s list of potential nominees are all exceptionally qualified and any one of them promise to respect the rule of law and defend the freedoms expressly set forth in the Constitution. President Trump’s judicial appointments have been stellar and we expect no less from his selection to fill this seat on the nation’s highest court.”

 

 

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