Thomas DeFrank at New York Daily News:
President Obama may get liberal Elena Kagan on the Supreme Court, but conservative swing-voter Anthony Kennedy says he’s not going anywhere anytime soon.
Justice Kennedy, who turns 74 this month, has told relatives and friends he plans to stay on the high court for at least three more years – through the end of Obama’s first term, sources said.
That means Kennedy will be around to provide a fifth vote for the court’s conservative bloc through the 2012 presidential election. If Obama loses, Kennedy could retire and expect a Republican President to choose a conservative justice.
Kennedy, appointed by President Ronald Reagan, has been on the court 22 years. He has become a bit of a political nemesis at the White House for his increasing tendency to side with the court’s four rock-ribbed conservative justices.
In fact, as the New York Daily News implies, Kennedy may have made that decision after this year’s State of the Union address:
Without naming Kennedy, Obama was unusually critical of his majority opinion in the Citizens United case, handed down last January. That 5-4 decision struck down limits on contributions to political campaigns as an abridgement of free speech.
Obama called the ruling “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power … in Washington to drown out the voices of everyday Americans.”
He was so angry that he took the unusual step of blasting the decision in his Jan. 27 State of the Union address, with Kennedy and five other justices looking on.
Obama certainly reveled in his prime-time, televised, cheap-shot attack at jurists who couldn’t fire back. Samuel Alito took fire from the media for having just mouthed a rebuttal. The only revenge any of them can take is to make sure that they stay in place until Obama leaves office. The “at least” part of the report almost certainly means that retirement at 80 may be just as possible as retirement at 76. After all, John Paul Stevens didn’t decide to retire until he was almost 90 years old.
Perhaps the timing is just a coincidence and Kennedy didn’t have plans to retire any earlier even prior to the 2008 election. However, this looks more like a quiet revenge, and a reminder to Obama that Kennedy will likely remain relevant longer than the President.
John McCormack at The Weekly Standard:
Kennedy has sided with the liberal activists on cases that held the Constitution grants habeas rights to enemy combatants, prohibits the death penalty for those under 18, and guarantees a right to abortion-on-demand. Kennedy has sided with the textualist/originalist bloc on 2nd Amendment and campaign finance/free speech cases. The 2012 election could determine whether these rulings and many others are upheld or overturned.
Jonah Goldberg at The Corner:
So far Obama has replaced one old liberal with a younger (wise Latina) liberal and is about to do it again (minus the wise Latina part). But if Justice Kennedy were to retire before 2012 he would throw the current Supreme Court balance completely over to the liberal bloc for years to come. I don’t fetishize the notions of “balance” or “centrism” on the court, but I value them greatly if the alternative is giving over the last branch of government to liberalism for years to come. So thanks very muchJustice Kennedy.
Kennedy isn’t the only justice who might be expected to retire sometime in the next six years. By 2012, four Justices — Kennedy, Scalia, Ginsburg, and Breyer — will be over 75 and while we might see one more retirement in Obama’s first term the changes that are likely to occur in the Senate after November make it unlikely that Obama will be able to appoint candidates even as liberal as Sotomayor or Kagan.
Nikki Schwab at The Washington Examiner
Supreme Court Justice Anthony Kennedy has told “relatives and friends” that he is staying on the court until at least the end of President Obama’s term. Kennedy, of course, is the “swinger” vote on the Supreme Court—the guy who is conservative but less so than the other four on the court, so he sometimes joins the liberals, so he is more powerful than Obama and Justin Bieber put together. And thus for at least a couple-point-five more years, the entire nation will have to kiss up to Anthony Kennedy if they have a parking ticket they want waived or want their state not to kill them with death chemicals.
Of course, Anthony Kennedy could stay on for yet another four years if MaoBama gets another term. That is, if he doesn’t die; he is turning 74 this month. But he could probably just sell his soul like Dick Cheney to stay alive until another Republican takes office and ensure the Supreme Court will be reactionary for another half century or so.