As the Supreme Court of the United States (SCOTUS) closes this term, another Reagan era appointee to the Court will no longer be serving. Justice Anthony Kennedy, who has served for 30 years, is retiring on July 31, 2018. This vacancy, along with the confirmation of Justice Gorsuch earlier in this first term, gives
President Trump the chance to reshape the Court more than any president who served during my lifetime. If patterns remain consistent, the next Supreme Court justice will serve long after Trump leaves office. Trump has successfully nominated a number of young, intelligent, and conservative judges already.
Why is Kennedy’s Seat So Critical?
When he was appointed in 1988, he was viewed as a conservative justice. But over the years, he evolved in his role and voted often with his liberal colleagues.He became the “swing voter” and most powerful justice when Justice Sandra Day O’Connor retired a few years ago.He is called the “swing voter” because, in general, SCOTUS now has four liberal justices and four conservatives. These eight are divided on issues such as abortion, executions, same-sex marriage, and many other issues. Justice Kennedy is the ninth justice. His vote results in many 5-4 decisions. Thus, he decides the outcome of these cases.
Republicans urged Kennedy to retire before the November elections, anticipating an even more difficult confirmation process if Democrats gain seats in the Senate. Today, Republicans hold a thin majority. The President’s choice may have to get the support of all Senate Republicans to be successfully confirmed.
Who Will Replace Kennedy?
Trump will likely nominate someone who is more conservative than Kennedy. He has already circulated a short list of 25 potential nominees. By the time this column is published, the list will be shorter.
Brett Kavanaugh, a former Kennedy clerk and judge on the DC Circuit Court of Appeals, is considered by many to be a leading candidate. He is viewed by many as a moderate who leans to the right. Others view him as a solid conservative.
Trump Likes Georgia
As of now, two Georgians are on the President’s short list. One of the two Georgians may be nominated to serve with Georgia’s other SCOTUS justice, the Hon. Clarence Thomas.
Justice Grant Britt, 40, currently serves on the Supreme Court of Georgia. She is a solid conservative. Her critics will complain that she doesn’t have the experience, is close-minded, and will not protect certain groups of people.
While Grant has just over one year of judicial experience on the Georgia Supreme Court, her record is impeccable. While working at the Office of the Attorney General, including as Solicitor General of Georgia, she demonstrated her high level of intelligence, keen analytical skills, and judicial belief in following the law even when she disagrees with it.
Justice Keith Blackwell, 42, also serves on the Supreme Court of Georgia. I have argued before him, read his opinions, and admire his common sense, conservative judicial philosophy. He is also the second-youngest male on the list and, like Grant, fits into the President’s plan for a long serving appointee.
Blackwell was appointed to the Georgia Court of Appeals by Governor Sonny Perdue in 2010. Governor Nathan Deal recognized his talent and appointed him to the Georgia Supreme Court in 2012. Before becoming a judge, Blackwell had already excelled in diverse environments by clerking for a federal judge, practicing law at two well respected firms, and serving as an Assistant District Attorney in Cobb County.
One aspect of the confirmation process is a safe bet to happen. The nominee will endure many accusations and few questions. Unfortunately, the confirmation process does not focus on a nominee’s qualifications anymore. Now, the focus is primarily on criticizing the nominee and challenging their character. But, both of Georgia’s justices are strong and can meet the Senate challenge.
Whether the new justice comes from Georgia or another state, it is very likely that a shift to the right will occur. Since the four liberals and four conservatives are unlikely to change their longstanding views of the role of the judiciary, the new justice will either become the swing voter who leans to the right or becomes part of the conservative wing.
SCOTUS will still be known for its 5-4 decisions, but many of those decisions will be based on whether an action by a lower court is constitutional when reading the plain language of law and strictly interpreting law rather than basing decisions geared toward a justice’s personal feelings about the law and society or a justice’s desire to interfere with Congress’ role of creating law. Jason W. Swindle, Sr.