LISTEN TO TLR’S LATEST PODCAST:
By Kevin Daley
President Donald Trump’s abrupt dismissal of former FBI Director James Comey disrupted the political scene in ways that White House did not anticipate, and the fallout may stymie one of the administration’s top priorities.
The prospect of future Supreme Court vacancies has kept the Republican party unified behind Trump at this precarious moment of his young presidency, but Comey’s firing in the midst of a wide-ranging probe into the Trump’s campaigns contacts with Russian operatives may force justices mulling retirement to bide their time as the scandal unfolds.
Rumors have abounded for months that Justice Anthony Kennedy is seriously considering retirement. The White House, hoping to encourage Kennedy to step aside, has sent signals meant to coax him into leaving the bench when the Court’s current term ends in June. Now, court-watchers speculate the 80 year-old Kennedy may reconsider his plans, lest he depart the Court during a tumultuous period.
The theory runs that Kennedy was initially reluctant to retire under a president as unpredictable as Trump. Those concerns, however, were allayed in the early months of Trump’s administration, which saw the elevation of several former Kennedy clerks to senior posts at the Department of Justice, and the appointment of Kennedy-alum Neil Gorsuch to succeed the late Justice Antonin Scalia. Assured that Trump could be trusted to select a responsible successor, Kennedy could have concluded he could retire without anxiety.
Veteran observers of the high court now speculate that the Comey dismissal probably changes that calculus.
Writing in the Atlantic, University of Baltimore School of Law professor Garrett Epps argued recent political developments would inspire trepidation on Kennedy’s part.
“Meanwhile, there is an investigation into possible collusion between Trump associates and an American adversary, Russia,” he writes. “And the president has fired the director of the Federal Bureau of Investigation. Trump had vocally welcomed James Comey’s clumsy intervention in the election—but now, as the Russia probe heats up, he is shocked! shocked! that the director had affected the political campaign.”
“And I wonder,” he adds, “what does Kennedy think?”
Legal commentator Matt Ford endorsed Epps’ thinking.
— Matt Ford (@fordm) May 10, 2017
Buzzfeed News legal editor Chris Geidner offering a similar assessment as the Comey drama unfolded on Tuesday night.
If Kennedy is considering retiring, and it's for anything less than immediate serious health concerns, I'd think today would give him pause.
— Chris Geidner (@chrisgeidner) May 10, 2017
Kennedy has been mum as to what exactly his plans are, and he has not offered a public evaluation of Trump’s presidency. Though a Supreme Court justice may safely ensconce himself in the business of the Court, he can’t avoid being subsumed by the politics of this moment.