McConnell: Fall vote on Kennedy's replacement

Senate Majority Leader Mitch McConnell (R-KY) says the Senate will hold a vote this fall to confirm President Donald Trump's yet-to-be-named successor to Justice Anthony Kennedy.

Posted: Jun 28, 2018 2:04 PM
Updated: Jun 28, 2018 2:37 PM

The irony of Justice Anthony Kennedy's legacy probably will be that the areas where he made the greatest difference in the law are the ones that are least likely to survive in the new, resolutely conservative Supreme Court poised to emerge under President Donald Trump.

Justice Clarence Thomas is 70; Samuel Alito is 68; John Roberts is 63; Neil Gorsuch is nearly 51. Absent unforeseen circumstances, they and the new nominee will be the majority for the next 10 to 20 years. For conservatives, this is a time to rejoice. For liberals, it is devastating.

Kennedy came on to the court after the Senate rejected the confirmation of a more conservative nominee, Robert Bork. Although overall Kennedy was more likely to side with the conservatives than the liberals in his 30 years on the court, there were many areas where he was notably more liberal than Bork would have been as a justice. It is expected that Kennedy will be replaced by someone who will be more consistently conservative, and these are the very areas where the law is likely to move to the right.

His most notable contribution to the law has been in the area of gay and lesbian rights. Kennedy has written every Supreme Court decision in history advancing rights for gays and lesbians. For example, in 2013, he authored the decision declaring unconstitutional a key provision of the federal Defense of Marriage Act, and in 2015, he wrote the opinion declaring unconstitutional state laws prohibiting same-sex marriage. Both were 5-4 decisions. I am surprised this is regarded as settled law in light of the vehement dissents, especially by Chief Justice John Roberts.

Kennedy was famously the fifth vote in 1992 in Planned Parenthood v. Casey to reaffirm Roe v. Wade. At the time, Bork publicly declared that he would have come out the other way. Two years ago, Kennedy was the fifth vote to strike down a Texas law imposing restrictions on access to abortion. But his replacement likely will join with the four conservative justices -- Roberts, Thomas, Alito and Gorsuch -- and overrule Roe and allow states to prohibit all abortions.

When Kennedy came on the court, he was a strong foe of affirmative action programs. But over time his views changed and two years ago, he cast the decisive vote to uphold a University of Texas affirmative action program and to reaffirm that colleges and universities have a compelling interest in having a diverse student body. The conservatives, especially Roberts, have left no doubt they want to have all forms of affirmative action declared unconstitutional, and replacing Kennedy will give them the fifth vote.

Although this week he voted to uphold Trump's travel ban, in the past he was a key vote in favor of limiting presidential power and protecting the rights of Guantanamo detainees. For example, in 2008, he wrote the majority opinion in a 5-4 decision declaring unconstitutional a federal law that prevented Guantanamo detainees from having access to federal court via habeas corpus. It is likely there now will be five votes to give more deference to the president.

Kennedy joined the liberal justices in 5-4 rulings limiting the death penalty, such as in preventing it from being used for crimes committed by juveniles or by the mentally disabled or for crimes other than homicides. Some even thought he might become a fifth vote to declare the death penalty unconstitutional. Without Kennedy this isn't going to happen, and these limits on capital punishment might be overruled.

Of course, there are the many areas where Kennedy was the fifth vote for a conservative result: in striking down campaign finance laws, in declaring a law violates the Second Amendment and in many cases this term. In these areas, replacing Kennedy with a conservative is likely to change little on the court.

The simple reality is that a conservative court is about to get much more conservative. And it is going to stay that way for a long time.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 159036

Reported Deaths: 3879
CountyCasesDeaths
DeSoto10563104
Hinds10414204
Harrison7397113
Jackson6655128
Rankin6057107
Lee540396
Madison5120107
Forrest394786
Jones376188
Lauderdale3663147
Lafayette341053
Washington3321108
Lamar301950
Oktibbeha255262
Lowndes252867
Bolivar248084
Panola237353
Neshoba2280122
Marshall225051
Leflore211191
Monroe209778
Pontotoc208131
Lincoln200566
Sunflower194155
Warren183058
Tate180451
Union172926
Copiah170840
Pike166760
Scott161330
Yazoo161340
Itawamba159936
Alcorn159328
Pearl River158969
Coahoma155943
Prentiss154931
Simpson154053
Adams147252
Grenada145445
Leake141844
Holmes134461
Covington130040
Tippah130030
George129525
Winston128726
Hancock127641
Wayne123024
Attala122834
Marion121447
Tishomingo114043
Chickasaw110732
Newton110529
Tallahatchie99427
Clay96127
Clarke94853
Jasper87023
Stone82015
Calhoun79513
Walthall79330
Montgomery78426
Carroll75515
Lawrence74614
Smith74216
Yalobusha74228
Noxubee73317
Perry68726
Tunica63019
Greene62422
Jefferson Davis59617
Claiborne59216
Amite57615
Humphreys55219
Quitman5107
Benton50418
Kemper48018
Webster47714
Wilkinson40722
Jefferson38312
Choctaw3637
Franklin3635
Sharkey32917
Issaquena1214
Unassigned00

Alabama Coronavirus Cases

Cases: 256828

Reported Deaths: 3711
CountyCasesDeaths
Jefferson34214511
Mobile20299366
Madison13925150
Tuscaloosa13591156
Montgomery12659238
Shelby1095877
Baldwin9163137
Lee792566
Morgan710851
Etowah677467
Calhoun6695121
Marshall665757
Houston548239
DeKalb504738
Cullman472043
St. Clair451857
Limestone447546
Lauderdale436054
Elmore427564
Walker3818111
Talladega374457
Jackson350723
Colbert336443
Blount310043
Autauga287342
Franklin259734
Coffee254115
Dale242054
Dallas232932
Chilton230841
Russell22813
Covington227934
Escambia206131
Tallapoosa189191
Chambers185950
Pike162214
Clarke161819
Marion146136
Winston141924
Lawrence135336
Pickens127720
Geneva12638
Marengo125224
Bibb123938
Barbour120629
Butler118842
Randolph105922
Cherokee105524
Hale99732
Fayette96316
Clay93525
Washington93319
Henry8946
Monroe83811
Lowndes82129
Cleburne79914
Macon76522
Crenshaw72930
Conecuh72414
Lamar7138
Bullock70919
Perry6927
Wilcox64918
Sumter58922
Greene44218
Choctaw43519
Coosa3724
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