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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 3:19 PM
Updated: Jun 28, 2018 3:37 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.

Indiana Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 35712

Reported Deaths: 2207
CountyConfirmedDeaths
Marion10037594
Lake3806202
Allen174371
Cass15927
Elkhart143529
St. Joseph132035
Hamilton118094
Hendricks118074
Johnson1120110
Madison59761
Porter55329
Clark52841
Bartholomew52238
Howard43734
LaPorte43624
Tippecanoe4214
Shelby39822
Jackson3942
Delaware38740
Hancock34928
Floyd32140
Boone31835
Vanderburgh2902
Morgan28324
Noble25121
Montgomery24417
Clinton2401
White2389
Decatur23031
Grant22123
Dubois2053
Harrison19622
Henry18412
Vigo1758
Greene17125
Dearborn17021
Monroe17012
Warrick16728
Kosciusko1661
Lawrence16524
Marshall1472
Miami1411
Putnam1377
Orange13122
Jennings1314
Scott1223
Franklin1158
Ripley1086
LaGrange1022
Daviess9516
Carroll933
Steuben872
Wayne865
Wabash802
Fayette797
Newton7810
Jasper701
Jay530
Clay522
Washington511
Rush503
Randolph503
Fulton501
Pulaski490
Jefferson471
Whitley443
DeKalb431
Starke393
Sullivan371
Owen341
Perry340
Huntington342
Brown331
Benton320
Wells320
Knox310
Blackford272
Tipton261
Crawford240
Fountain222
Switzerland210
Spencer211
Adams201
Gibson182
Parke180
Posey160
Ohio130
Warren121
Martin120
Vermillion100
Union90
Pike60
Unassigned0175

Ohio Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 36792

Reported Deaths: 2300
CountyConfirmedDeaths
Franklin6112290
Cuyahoga4669247
Hamilton2739164
Marion267931
Lucas2296256
Pickaway209537
Summit1487181
Mahoning1463188
Butler93333
Columbiana88952
Stark75299
Lorain70960
Montgomery69516
Trumbull58451
Belmont43914
Warren39021
Medina36623
Miami36230
Tuscarawas3604
Ashtabula34537
Delaware34414
Portage33257
Lake31812
Fairfield3108
Clark3067
Wood30348
Geauga29533
Wayne28851
Licking26510
Mercer2207
Clermont2165
Allen21433
Richland2093
Darke18423
Erie18216
Madison1627
Washington11819
Crawford1174
Morrow1071
Ottawa10217
Greene1025
Putnam9514
Sandusky8512
Monroe7914
Auglaize763
Ross732
Hocking705
Jefferson672
Hardin640
Huron601
Williams561
Union551
Muskingum521
Hancock511
Shelby463
Holmes463
Clinton451
Fulton450
Wyandot442
Coshocton400
Logan400
Fayette400
Preble391
Guernsey362
Defiance342
Carroll313
Brown301
Lawrence300
Champaign281
Highland261
Knox251
Seneca242
Vinton212
Ashland210
Perry191
Athens181
Henry170
Scioto170
Paulding140
Jackson140
Adams101
Harrison100
Pike90
Gallia81
Van Wert70
Noble60
Meigs60
Morgan50
Unassigned00
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