What Happens When A Justice Retires?

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family,” -Justice Anthony Kennedy, majority opinion Obergefell v. Hodges.


Justice Anthony Kennedy has announced his retirement as of July 31. At 81, he has made the decision to step down at the end of July. Kennedy has been a crucial swing vote on cases such as Obergefell v Hodges {14th amendment case requiring the recognition of gay marriage in all states}. He has upheld Roe v. Wade (1992). At times, he has sided with conservatives as in the recent travel ban case. Justice Kennedy was a man of his own principles, leaning both ways.

So now what?

When a seat is open, it’s not as if it hasn’t been thought of prior to. After Justice Antonin Scalia’s sudden passing, the seat was open for awhile. It was a Presidential election year, and Republicans did not have a hearing for Merrick Garland (a potential nominee for this seat). Because the Republicans have control of the two main operatives in this, we likely will not see a delay. *I could be wrong*

The President has a short list of vetted nominees that the Department of Justice has looked at. This list always exists so that the President is ready to go with a valid nominee. Politico has it’s thoughts, as do most media venues. Only time will tell.

The President will announce a potential nominee to the Court possibly this summer. At this point, the Senate is responsible for hearings and confirmation. Article 2, Section 2 reads that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” The Senate Judiciary Committee (a standing committee chaired by Iowa Senator Chuck Grassley, R)investigates and holds a hearing. This is the stuff you see on C-Span or your nightly news. After this, the committee can report favorably or unfavorably to the Senate and a simple majority is needed. At this time, there are 51 Republican Senators (same party as the President). Because there is an election forthcoming, there may be a rush to confirm the new justice.

Justice Kennedy will join {my personal hero} Justice Sandra Day O’Connor, Justice Souter, and Justice John Paul Stevens (and his adorable bow ties which he wore when I saw him in Court) in retirement.

Article III of the Constitution allows for judges on the Federal Courts to serve on good behavior. This is viewed as a lifetime appointment, which makes the next nominee very important in Constitutional history.


American Bar Association

Federalist 78

Senate List of Nominees throughout the years

Donald Trump and the federal judiciary (Podcast)

** This session was a surprise for me. I always thought the last Monday in June was it. But this term showed me “but in this world nothing can be said to be certain, except death and taxes.” Benjamin Franklin

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