Embattled Senator Predicts Justice Kennedy Will Retire; Is It a Ploy?

Anthony Kennedy

Republican U.S. Sen. Dean Heller, who’s in a tough reelection campaign, has predicted one of our worst Supreme Court nightmare scenarios — that Anthony Kennedy will soon retire — but it could be a ploy to save his seat.

“Kennedy is going to retire around sometime early summer,” the Nevada senator said at an event in Las Vegas last week, according to a recording obtained by Politico. “Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated.”

Kennedy, 81, is the key swing vote on the court and the author of all the court’s four major pro-LGBT rulings: 1996’s Romer v. Evans, striking down Colorado’s antigay Amendment 1; 2003’s Lawrence v. Texas, invalidating sodomy laws throughout the nation; 2013’s U.S. v. Windsor, striking down the portion of the Defense of Marriage Act that kept the federal government from recognizing same-sex marriages; and 2015’s Obergefell v. Hodges, which legalized same-sex marriage nationwide. If Kennedy retires, Donald Trump would almost assuredly nominate an ultraconservative jurist to replace him, and if such a justice were confirmed, it would give the court a conservative majority.

“Many Republicans credit the Supreme Court vacancy in 2016 with keeping the Senate in GOP control — and making Trump president,” Politico notes. “Heller went on to float Sen. Mike Lee for the job, calling the Utah Republican the type of conservative who could energize Nevada's electorate in the June 12 primary. Lee's office declined to comment.”

“Mike Lee from Utah is probably on that short list of the next Supreme Court justice in our courts,” Heller said during his appearance at the J. Reuben Clark Law Society in Las Vegas last Friday, according to Politico. It was Lee who this week introduced a new version of the First Amendment Defense Act, which would give the federal government’s blessing to discrimination against LGBT people and others if it’s based on religious or moral beliefs about marriage and sexuality.

Heller has an interest in energizing the Republican base. He’s the only Republican senator from a state Hillary Clinton carried in the 2016 presidential election. He narrowly won the seat in 2012, after having been appointed the year before. He has a strong primary challenger in businessman Danny Tarkanian, and if Heller wins the primary, his general election campaign against a Democrat won’t be easy either. Several candidates are running in the Democratic primary, but the favored one is U.S. Rep. Jacky Rosen.

Kennedy, nominated by Ronald Reagan to the court in 1987 and confirmed by the Senate in early 1988, hasn’t commented publicly on the latest rumors of his retirement. There were similar rumors last June, but he is still on the court and has hired four law clerks for the 2018-2019 term.

“Hiring a full slate of clerks doesn’t guarantee that Kennedy is staying,” notes the Above the Law blog. “But it’s more evidence that he’s staying than anything Dean Heller has in the opposite direction. Heller’s political need for Kennedy’s imminent retirement is the news here, not any new information about Anthony Kennedy’s plans.”

The blog points out that any justice could retire or die, so there are no guarantees. Liberal stalwart Ruth Bader Ginsburg is over 80 and has had health problems, and another liberal justice, Stephen Breyer, will turn 80 this year. “But Dean Heller doesn’t have any inside information,” Above the Law concludes. “He’s just a guy trying to figure out how to hang onto his job.”

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