Justice Anthony Kennedy

Jasper Colt-USA TODAY NETWORK

Supreme Court Justice Anthony Kennedy Retiring

June 27, 2018 - 2:10 pm
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WASHINGTON (WCBS 880/CBS News) -- Justice Anthony Kennedy is retiring from the U.S. Supreme Court, CBS News has learned.

Kennedy has advised his colleagues that he is submitting his resignation to President Donald Trump, CBS News reported. The resignation will take effect on July 31.

"It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court," Kennedy said in a statement.

Kennedy said while his family was willing for him to continue serving, he decided he wanted to spend more time with them. He said he will retain warm ties with his colleagues on the court for years to come.

Kennedy called it the "highest of honors to serve on this Court," and he expressed his "profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises."

President Trump said that he found out about Kennedy's retirement a half-hour before it was announced -- he had in fact gone to the White House to talk to the president for about 30 minutes, and Kennedy offered recommendations about who might replace him, the president told reporters during a meeting with the president of Portugal. Trump did not answer questions about who Kennedy recommended. 

He called Kennedy a "spectacular man" with "tremendous heart" and said he hoped to pick somebody who will be as "outstanding" as Kennedy has been. The search, the president said, will begin immediately, and Kennedy's replacement will be chosen from the list of 25 candidates he considered last year, when he ultimately chose Neil Gorsuch.

The White House released a statement praising Kennedy for his 30 years of service on the Supreme Court.

“A Californian – like the president who appointed him – Justice Kennedy is a true man of letters. During his tenure on the Court, he authored landmark opinions in every significant area of constitutional law, most notably on equal protection under the law, the separation of powers, and the First Amendment’s guarantees to freedom of speech and religion,” the statement said in part. “Justice Kennedy has been a tireless voice for individual rights and the Founders’ enduring vision of limited government. His words have left an indelible mark not only on this generation, but on the fabric of American history.”

Trump will now have the opportunity nominate another conservative to replace a crucial vote on the divided court.

He said he will immediately begin search for a nominee.

“Hopefully, we’re going to pick somebody who will be as outstanding,” he said.

CBS News' Jan Crawford noted that Kennedy had been saying privately he would retire, so this was not a big surprise. Kennedy's retirement gives Mr. Trump his second nomination, following Justice Neil Gorsuch. With this next nomination, he could turn the Supreme Court to the right for a generation, she said on CBSN. 

Kennedy was nominated in 1987 by President Reagan to the court, after Robert Bork's nomination failed and Douglas Ginsburg was pressured to withdraw after questions were raised about his admission he had smoked marijuana several times.

Though he was nominated by a Republican president, Kennedy, a California native, also has a strong libertarian streak, and he was the swing vote on the court, casting the deciding vote on the same-sex marriage decision, affirmative action, and Citizens United, among others. Crawford points out that he refused to overturn Roe v. Wade, and he also constrained the bolder conservatives on the court, pulling them back a little bit. "He would just never say 'never' on those social issues," Crawford said. 

Crawford expects the president to name a new justice soon, to be confirmed during the summer and in place when the high court returns in October to hear arguments. 

His retirement is a tremendous blow to the Left, especially after Senate Democrats' failure to filibuster the president's first Supreme Court nominee, Neil Gorsuch. Sen. Majority Leader Mitch McConnell invoked the nuclear option, lowering the threshold from the super majority of 60 votes that is normally required for confirmation to a simple majority. That simple-majority rule remains in place for subsequent nominees.

CBS News' Chief White House correspondent Major Garrett points out that Kennedy's retirement is a campaign gift to Republicans and the president. The second Trump Supreme Court nominee will be galvanizing call to Republicans to support Republicans on the ballot in Senate and House races in the midterms.  

Greg Stohr, Supreme Court reporter for Bloomberg News, said Trump has a list of 25 potential nominees that he has put out to replace Kennedy.

“We have a very excellent list of great, talented, highly educated, highly intelligent, hopefully tremendous people,” Trump said. “I think the list is very outstanding.”

The potential nominees are all judges at teh state or federal level.

“They have all been vetted by the conservative groups – the Federalist Society and the Heritage Foundation. They are all people with track records that make legal conservatives very confident there’ll be somebody they like. They may not be quite as conservative as Clarence Thomas, but they’ll be on that side of the court,” Stohr told WCBS 880’s Steve Scott and Michael Wallace.

Washington Post Supreme Court reporter Robert Barnes also said Kennedy’s retirement represents a major chance to turn the court to the right for a long time to come.

“I think that whoever replaces Justice Kennedy will certainly be more conservative than Justice Kennedy is. He was, as you say, sort of the swing vote, although he was most of the time on the conservative side. But I think that, you know, Republicans have a chance, and the president has a chance, to really solidify a conservative majority on the court for a generation. So I would be surprised if it wasn’t someone fairly conservative,” he said.

One person who has been identified as a frontrunner is Judge Brett Kavanaugh, Stohr said.

“He is a former Kennedy law clerk. He serves on the U.S. Court of Appeals for the D.C. Circuit here in Washington. He is in his early 50s; well-regarded by conservatives; somebody who would fit the sort of things I was talking about before,” Stohr said.

Whoever is nominated, a dramatically more conservative Supreme Court is likely to be in place for a generation to come – and a lot could change as a result.

“It’s impossible to overstate how important Anthony Kennedy is to the court and to the country. He has been basically the center of the court on almost every big issue for the last dozen years or so. If the president’s successful in nominating a successor, we are talking about the possibility that Roe v. Wade could be overturned. There’ll be five justices who are going to be very skeptical of it. We are talking about big shifts on racial discrimination; on the death penalty. We could have a much more conservative Supreme Court, “ Stohr said.

Barnes agreed that Roe v. Wade being overturned is a possibility.

“I think we’re going to see a real battle over abortion – the anti-abortion folks and the abortion rights folks are already gearing up for a huge battle,” he said. “President Trump has promised that all of his nominees will be pro-life, and so I think that’s going to be the big issue in the coming confirmation fight, no matter who the nominee is.”

U.S. Senate Majority Leader Mitch McConnell (R-Kentucky) has already said there will be a vote on the nominee. Some people remember what happened when President Barack Obama nominated Merrick Garland to the court and had his nomination pushed off on the grounds that it was an election year, but Barnes said that is not likely to happen this time.

“I don’t see how it could. You know, the Democrats are at a disadvantage. They simply don’t have the votes. Mitch McConnell earlier, as you say, changed the rules of the Senate so that only a majority of senators is needed to confirm a Supreme Court justice. That’s how Neil Gorsuch got on,” he told WCBS 880’s Scott, “and so unless, you know, they somehow nominate someone sort of out of the mainstream – really out of the mainstream – or whether or not that person has some problems along the way, it seems quite likely that the president’s choice could be confirmed.”

Senate Minority Leader Charles Schumer (D-New York) said it would be the "height of hypocrisy" for the Senate to vote on the confirmation of a new Supreme Court justice before the November midterm elections.

(© 2018 WCBS 880. CBS News contributed to this report.)