Balkinization: Strategic Retirements, Anthony Kennedy Edition

Strategic Retirements, Anthony Kennedy Edition

Mark Tushnet

I deliberate chose to write this before the Obergefell decision is announced (and I may be repeating something I've already posted here): Suppose that you are Anthony Kennedy and one thing you care a lot about is that your successor be as close to you ideologically as is politically achievable. That consideration leads you to the following calculation. If you retire at the end of the current Term your successor will be nominated by President Obama and will have to be confirmed (if at all) by a Senate with a Republican majority. If you delay your retirement until the end of the next Term or later, you face three possibilities (to which you have to assign probabilities): A Democratic President nominating your successor, to be confirmed by a Senate with a Democratic majority; a Democratic President and a Senate with a Republican majority; or a Republican President and a Senate with a Republican majority.

Of course you're a Republican, but the median Republican Senator (or potential President) today is not all that close to your ideological position -- closer to your position than the Republicans were to David Souter's position when he, also a Republican, retired, but still, not all that close. So, from your point of view, the worst case scenario is probably a Democratic President with a Democratic Senate, but maybe the second worst case is a Republican President with a Republican Senate. Maybe the best thing for you is a Democratic President with a Republican Senate.

But, of course, you've got that right now, and there's some chance that next year or after you'd have a less desirable configuration of political power. So, maybe you should think seriously about announcing your retirement at the end of the current Term. Of course, the Republicans in the Senate might be willing to leave the Court with only eight Justices until after the 2016 elections; until recently that would been an unthinkable breach of taken-for-granted understandings, but maybe the norms have changed substantially. (And, saying that you'll serve until the confirmation of your successor would give the Republicans a chance to delay without overtly breaching even that "norm." Even saying that you'll serve until the confirmation of your successor or the end of the 2015 Term, whichever comes first, might give the Senate Republicans bad incentives, from your point of view.)

So, maybe the rest of us should be paying a lot of attention to what happens when or just after the current Term ends. (Particularly paying attention might be, in order of likelihood of confirmation by a Republican Senate, Sri Srinivasan, Jacqueline Nguyen, and Goodwin Liu. Notice something about that list?)

Posted 9:55 PM by Mark Tushnet [link]