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Justice Kennedy Retires; Confirmation Frenzy Ensues a Battle Over the Ideological Future of the U.S

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Justice Kennedy Retires; Confirmation Frenzy Ensues a Battle Over the Ideological Future of the U.S 315 W. 11TH AVE., DENVER, CO 80204 | 720–328–1418 | WWW.LAW WEEK COLORADO.COM VOL. 16 | NO. 27 | $6 | JULY 2, 2018 Justice Kennedy Retires; Confirmation Frenzy Ensues A battle over the ideological future of the U.S. Supreme Court is now underway following Justice Anthony Kennedy stepping down last week BY CHRIS OUTCALT mation battle than there was over Jus- nedy is a moderate conservative who rights. “To be honest, “I think they’ll LAW WEEK COLORADO tice Gorsuch.” upset hardline conservatives with his make this an appointment about Roe Following the sudden death of willingness to protect reproductive V. Wade, which it arguably is,” Chen Supreme Court Justice Anthony Justice Antonin Scalia in 2016, Sen- freedoms, marriage equality, and some said. “I think that will be one of the Kennedy punctuated an already rous- ate Majority Leader Mitch McConnell prisoner rights.” mobilizing forces to get more peo- ing end to the court’s session last successfully blocked then-President In making past Supreme Court se- ple to care about this particular ap- week — which included a 5-4 decision Barack Obama’s nominee, Justice Mer- lections, presidents have taken into pointment.” A battle on those terms, upholding President Donald Trump’s rick Garland, refusing to hold hearings account factors such as a candidate’s Chen suggested, could put pressure travel ban and another knocking pub- or even meet with Garland. McConnell background as well as geographic on moderate women in the Senate. lic-sector unions — by announcing frequently argued that the vacant seat and professional diversity. Chen said Back in 1992, Justice Kennedy sided his retirement. A somewhat moder- should not be filled during an election he thinks this selection will be more with liberal judges in a vote that up- ate conservative long considered the year and that “the American people narrowly focused. “Kennedy isn’t a held Roe V. Wade, which ruled access court’s key swing vote, Kennedy’s de- should have a say in the court’s direc- liberal by any means, but he was the to abortion is a Constitutionally pro- parture leaves room for Trump to pull tion.” After Kennedy’s announcement deciding vote on a lot key social is- tected right. the group further right, perhaps re- last week, however, McConnell vowed sues,” he said. “I think ideology is Litigation attorney Andy Baak of shaping the collective ideology of the to hold a vote on a replacement this the only thing that’s going to mat- the Denver firm Bartlet Beck served country’s highest court for the next fall, saying from the Senate floor, “The ter with this appointment. They’re as a clerk for Justice Kennedy during several decades. Senate stands ready to fulfill its con- almost overt about it; it’s really just the court’s 2004-2005 session. Beck Shortly after Kennedy broke the stitutional role by offering advice and pure power at this point.” described Kennedy as “unfailingly po- news last Wednesday, Trump told re- consent on President Trump’s nomi- To confirm Gorsuch last year, the lite and warm, with a great sense of porters he would “begin immediately” nee to fill this vacancy.” Senate enacted the so-called “nuclear humor” and “a true gentleman in the searching for a new justice. The presi- Colorado Senator Cory Gardner option,” changing the chamber rules best sense of the word.” Baak recalled dent indicated he would again pull was quick to publicly tout Eid, who was so that Supreme Court judges could that during those years he had a new- from an existing shortlist of 25 candi- elevated to the 10th Circuit court last be confirmed by a simple majority, born and remembered sending the dates compiled during the 2017 nomi- year and previously served as a law rather than the previously required 60 birth announcement to Kennedy, who nation process that led to the selection clerk for Supreme Court Justice Clar- votes. That rule change means Demo- responded by sending Baak a signed of former 10th U.S. Circuit Court of ence Thomas; on Thursday, Gardner crats, who currently hold 49 senate copy of the Constitution as a baby gift. Appeals Justice Neil Gorsuch — a list sent a formal letter to Trump citing Eid seats, have seemingly few routes to Baak said that although Kennedy that includes two other Coloradans as a strong candidate and urging her hold up any Trump nominee. “The will likely be remembered as having from the 10th Circuit, Judges Allison selection. But Chen said he thinks it’s situation with Trump is unique not occupied the middle of the court for Eid and Timothy Tymkovich. unlikely Trump will choose another only because he has two appoint- much of his tenure, he noted a very “This is a watershed moment in 10th Circuit judge. (Prior to Gorsuch, it ments so early in his term,” Connelly consistent thread in Kennedy’s juris- American constitutional history,” said had been nearly 50 years since a presi- said, “but also because his appointee prudence was his strong commitment Alan Chen, a professor at the Univer- dent had appointed someone from the goes before a Republican-controlled to the First Amendment. sity of Denver’s Sturm College of Law. 10th Circuit to the Supreme Court.) Senate willing to use a nuclear option “Regardless of whether you agree “Justice Kennedy was a critical justice Regardless of who Trump selects to confirm with the votes of just fifty with the Justice on any given issue, at the fulcrum of a sharply divided from the shortlist, the new justice Senators.” No president dating back he’s a wonderful person — very warm court and is stepping down at a time will almost certainly push the court to at least Bill Clinton has appointed and generous — who cared deeply when national politics are ideologi- ideologically further to the right. “Ev- two Supreme Court judges during his about the court as an institution and cally divided in extreme ways.” Chen eryone on this list is to the right of first two years in office. the rule of law in general,” Baak said. added, “What [Kennedy’s retirement] Kennedy, and I think that will be the Chen suggested one option the “I would expect in his retirement he’d will leave in its wake is a frenzy over goal,” said Sean Connelly, a Denver ap- Democrats might opt for is to attempt continue to dedicate himself to speak- the nomination by president Trump; pellate attorney and former Colorado to steer the nomination conversa- ing on those issues.” • it’s likely to be a much sharper confir- Court of Appeals judge. “Justice Ken- tion toward women’s reproductive — Chris Outcalt, [email protected].
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