Is the Trump White House behind Justice Anthony Kennedy's Supreme Court retirement?

Vacancy gives president chance to move Supreme Court's composition to the right 

Adam Liptak,Maggie Haberman
Friday 29 June 2018 12:56
Donald Trump speaks before Justice Anthony Kennedy (R) administers the oath of office to Neil Gorsuch (C) as an associate justice of the US Supreme Court
Donald Trump speaks before Justice Anthony Kennedy (R) administers the oath of office to Neil Gorsuch (C) as an associate justice of the US Supreme Court

It was not long after Anthony Kennedy announced his retirement as a Supreme Court judge that Washington tongues started to wag, with many insiders claiming Justice Kennedy's decision was made at the quiet behest of the Trump White House.

Justice Kennedy visited the White House on Wednesday to tell Mr Trump of his retirement. He also delivered a letter to the president. Its warm opening words - “My dear Mr President” - acknowledged the cordial relationship between the two men,

In many ways, Justice Kennedy's announcement vindicates the White House’s strategic flattery of the 81-year-old Californian.

In April 2017, Mr Trump first praised Justice Kennedy as “a great man of outstanding accomplishment".

“Throughout his nearly 30 years on the Supreme Court,” Mr Trump added, “Justice Kennedy has been praised by all for his dedicated and dignified service.”

The irony is that Justice Kennedy is reviled by many of Mr Trump’s supporters for voting to uphold access to abortion, limit the death penalty and expand gay rights. Conservatives have called for his impeachment. James Dobson, the founder of Focus on the Family, once called Mr Kennedy “the most dangerous man in America".

Mr Trump himself said he wanted to appoint justices who would overrule Roe v Wade, the 1973 decision establishing a constitutional right to abortion. Mr Kennedy has voted to reaffirm Roe. Moreover, Mr Trump has not held back from criticising far more conservative members of the Supreme Court, notably Chief Justice John Roberts Jr.

One person who knows both men says there is an affinity between Mr Trump and Mr Kennedy. This is not obvious at first glance. Mr Kennedy is bookish and abstract, whereas Mr Trump is abrasively direct.

But they had a connection - one Mr Trump was quick to note in the moments after his first address to Congress in February 2017. As he made his way out of the chamber, Mr Trump paused to chat with the justice.

“Say hello to your boy,” Mr Trump said. “Special guy.”

Mr Trump was apparently referring to Mr Kennedy’s son, Justin. The younger Mr Kennedy spent more than a decade at Deutsche Bank, eventually rising to become the bank’s global head of real estate capital markets.

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During Mr Kennedy’s tenure, Deutsche Bank became Mr Trump’s most important lender, dispensing well over $1bn (£761m) in loans to him for the renovation and construction of skyscrapers in New York and Chicago at a time when other mainstream banks were wary of doing business with him because of his troubled business history.

About a week before the presidential address, Ivanka Trump had paid a visit to the Supreme Court as a guest of the elder Mr Kennedy. The two had met at a lunch after the inauguration, and Ms Trump brought along her daughter, Arabella Kushner.

Ms Trump tweeted about the visit and posted a photo. “Arabella & me at the Supreme Court today,” she wrote. “I’m grateful for the opportunity to teach her about the judicial system in our country firsthand.”

The subtle overtures of the Trump White House were in stark contrast to the blunt rhetoric of its allies. Last month, Senator Charles Grassley of Iowa, the Republican chairman of the Senate Judiciary Committee, went on the radio to issue an urgent plea.

“My message to any one of the nine Supreme Court justices: if you’re thinking about quitting this year, do it yesterday,” he said

Mr Grassley added speed was of the essence in light of the midterm elections in November. “If we have a Democrat Senate,” he said, “you’re never going to get the kind of people that are strict constructionists.”

Intermediaries pressed the point with Mr Kennedy privately, telling him that Donald McGahn II, Mr Trump’s White House counsel, would in all probability leave after the midterms. Mr McGahn has been a key architect of Mr Trump’s successful efforts to appoint conservative judges, they said, and his absence would complicate a Supreme Court confirmation.

There is nothing particularly unusual in urging older justices to retire for partisan reasons. During the Obama administration, prominent liberals called for Justice Ruth Bader Ginsburg to retire so that Mr Obama could name her successor.

Mr Kennedy waited until the last day of the term to announce his retirement. The move disappointed liberals who had hoped that he would not want Mr Trump to name his successor. But the justice, saying he wanted to spend more time with his family, betrayed no hesitation.

His departure is a triumph for Mr Trump, who has taken particular satisfaction in his judicial appointments. Naming justices and judges is easier than forging legislative compromises. Mr Trump understands that his judicial appointments represent a legacy that will long outlast his presidency.

Replacing Mr Kennedy, who for decades held the decisive vote in many of the court’s closely divided cases, would give Mr Trump the opportunity to move the court sharply to the right.

The New York Times

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