Anthony Kennedy, the 81-year-old Supreme Court justice who often served as a “swing vote” between the four hardline conservative justices currently on the court and the four liberal justices, as the Washington Post reported, announced on Wednesday that he was stepping down from the seat he had held since being appointed by President Ronald Reagan 30 years ago.
Because he was neither a staunch conservative nor a progressive liberal, it was up to Kennedy to settle some of the most significant cases of the past three decades, when cases divided the court along sharp ideological lines and the votes of the other eight justices on the court were essentially known in advance. Kennedy provided the deciding fifth vote in the 2015 case that legalized same-sex marriage on a nationwide basis, writing in his opinion that the Constitution guarantees gay and lesbian Americans “equal dignity in the eyes of the law,” as CBS News recounted.
But it was also Kennedy providing the deciding vote on the conservative side, and authoring the majority opinion, in the 2010 Citizens United case, in which Kennedy — and the court — ruled that corporations may make unlimited “dark money” political contributions to outside groups that support candidates, as long as the contributions are not directly coordinated with the candidates.
Kennedy’s retirement immediately set off a wave of speculation as to who Donald Trump would nominate to replace Kennedy on the bench, and the White House has published a list of 25 potential selections. Three of Trump’s likely top candidates are named below.
William Pryor Jr.
Called by the Washington Post “perhaps the most polarizing Supreme Court justice possibility,” Pryor, 55, was nominated to the 11th Circuit Court of Appeals in 2003 by President George W. Bush, only to have congressional Democrats attempt to block his confirmation on the grounds that Pryor was “an extremist.”
Perhaps the most hard-line opponent of abortion rights on Trump’s list, Pryor once referred to the 1973 Supreme Court Roe v. Wade decision, which established a woman’s right to to terminate her pregnancy, “the worst abomination of constitutional law in our history,” making the abortion decision worse in Pryor’s eyes than the infamous 1857 Dred Scott decision which, as History.com recounts, ruled that enslaved African-Americans were simply property, without the basic human right to freedom.
Pryor also, when he was Alabama attorney general — succeeding current U.S. attorney general Jeff Sessions — filed a brief in support of a law banning sodomy, though despite his support, the law was ultimately struck down, according to SCOTUSBlog.
Trump himself appointed the 51-year-old Willett to 5th Circuit Court of Appeals, after Willett had served on the Texas State Supreme Court where he was best known for his extreme right-wing views — boasting, as Mother Jones recounts, “there is no ideological daylight to the right of me” — and his active Twitter feed. Those characteristics made Willett not unlike Trump, thought Willett stopped posting Twitter messages when he joined the 5th Circuit on January 1 of this year, according to the Austin American Statesman.
Oddly enough, Willett had ridiculed Trump on his Twitter feed on more than one occasion, as MarketWatch reported.
But the frontrunner to take over Kennedy’s seat, at least on Trump’s list, appears to be Kennedy’s own former law clerk, 53-year-old Brett Kavanaugh, who now sits in the Washington, D.C., Circuit Court of Appeals. In fact, the online betting market PredictIt already shows Kavanaugh as the favorite among those willing to put their money where their mouth is, according to Raw Story.
When President George W. Bush nominated Kavanaugh to the D.C. court in 2003, he ran into sharp opposition partly because he had worked for Special Prosecutor Ken Starr to build an impeachment case against President Bill Clinton, but also because he was considered to be simply not up to the job, with even the normally staid New York Times editorial board blasting Kavanaugh as “unqualified.” And the American Bar Association knocked his evaluation down from “well qualified” to merely “qualified” after investigating his career. As a result, Kavanaugh’s confirmation took three years.
On the D.C. Court he has filed dissenting opinions in cases where the court upheld a ban on assault weapons, and allowed a 17-year-old undocumented immigrant to obtain an abortion, according to the ABA Journal.
An analysis of Kavanaugh’s record on the court by the legal blog Empirical SCOTUS found that in his opinions as a judge, the frontrunner to replace Kennedy “has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases.”