In this partisan-as-ever country we call home, there's one thing even the far, far left and far, far right agree on.
The conservative judge President Donald Trump tabs to replace the retiring Anthony Kennedy in the ninth seat on the Supreme Court (announcement Monday at 8 p.m. on WDWS) will be a game-changer, more so than any appointee in at least three decades, if not longer.
But that's where the consensus ends, The News-Gazette found in surveying 32 top law deans, scholars, attorneys, government officials and court watchers on the eve of the president making public his pick, who experts on both sides predict will have a relatively smooth path to confirmation by the GOP-controlled Senate.
"It would take some truly fantastical scenario — of the order of a nuclear attack on Washington or invasion by space aliens — to slow this train down," says University of Illinois law Professor Jason Mazzone. "In the past, there was a risk that the nominee would self-detonate during the confirmation process — remember that Anthony Kennedy was President Reagan's third pick — but nominees today are far too prepared and savvy to do that.
"We'll have nine justices when the Court convenes in October."
What will be the long-term impact of Trump's second lifetime appointee in 524 days, whomever she or he is. Here's what our panelists had to say.
Jeffrey Toobin, author of 2007 best-seller "The Nine," has predicted that 18 months from now, abortion will be illegal in 20 U.S. states. Could you see that happening as a result of Justice Anthony Kennedy's retirement?
derbilt law Professor SUZANNA SHERRY says: "Absolutely. It's already very difficult in about that many states."
— Columbia law Professor SUZANNE GOLDBER
G says: "There is a group of states that has tried relentlessly, for many years, to cut back on women's access to safe abortion. Whether they actually take the step to criminalize abortion — with the devastating public health consequences that would create — remains to be seen. But they will surely continue efforts to shut down access at every turn."
— ProPublica founding GM
DICK TOFEL says: "The latest Gallup poll shows only 18 percent in favor of banning abortion. I would be very surprised if Chief Justice (John) Roberts wanted to set the Court so sharply against that societal consensus on a matter so critical to so many people. The Wall Street Journal editorial page recently cited a close friend of the late Justice (Antonin) Scalia saying that even Scalia, by the end of his life, had concluded that Roe should not be overruled."
— NBC News justice corresponden
t PETE WILLIAMS says: "Groups that track abortion laws in the states say if Roe were overturned, abortion could become illegal in 22 states, either because they have the necessary laws already in place or because they're likely to pass similar legislation. But of the current conservatives on the court, only Clarence Thomas is on record opposing Roe. Even assuming the others — Samuel Alito, Neil Gorsuch and the new Trump nominee — also voted to strike it down, that's only four. It's not at all clear that Chief Justice John Roberts would vote to overturn a 45-year-old precedent. The court is more likely to uphold the growing number of state laws that limit access to abortion service."
— Cal Berkeley law Dean ERWI
N CHEMERINSKY says: "Absolutely. The only question is when."
— National Review Editor RICH LO
WRY says: "It won't happen that quickly, but a case challenging Roe will inevitably arise. It's impossible to know how the justices, especially Roberts, will decide under the enormous political and social pressure that will be brought to bear, but there is some significant chance that Roe will be overturned and this issue will finally be fully returned to the political realm."
— University of Colorado Professor ROB
ERT NAGEL says: "I think Toobin's prediction displays either political calculation or a failure to consider the modern history of the Court and the wider influences and inclinations that shape its behavior. It is highly unlikely that replacing Justice Kennedy will result in an over-ruling of Roe. None of the highly controversial 'landmark' decisions of the Warren Court — not Brown, not Miranda, not Baker v. Carr — have been overruled despite the fact that Republican appointees have had a numerical majority on the Court for almost all of the past four-and-a-half decades.
"There are many reasons for this, but the main reason is that conservative jurists tend to equate the Court's political standing — its prestige and legitimacy — with the rule of law itself. To put it bluntly, they tend to care more about protecting the Court as an institution than about enforcing the Constitution itself. Anyone who doubts this should look at the overall records of the Burger, Rehnquist and Roberts courts or just re-read the Casey decision, where three Republican appointees authored a hysterically frightened opinion about the need to protect the Court's prestige — even if that means condemning as deeply illegitimate political pressures to overrule Roe v. Wade."
Would it be surprising if the next nominee gave his/her opinion on Roe v. Wade during Senate confirmation hearings?
— Famed women's rights attorney GLORIA
ALLRED says: "It would be shocking."
— MARTHA C. NUSSB
AUM, the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, says: "Yes. They can easily avoid this — for example, by saying neutrally that it is 'settled law' — and nothing but trouble for them would come of saying more."
— Sherry says: "The nominee is highly unlikely to give his or her opinion on Roe v. Wade, and will instead hide behind the claim that the question may come before the Court. Recent nominees have even refused to give an opinion on Brown v. Board of Education, an iconic case that nobody has ever suggested overruling — at least not in the last 50 years or so.
"And so, senators — like (Susan) Collins of Maine, I believe — who have said they will be reluctant to confirm anyone who wants to overrule Roe — will also be able to hide by claiming that they don't know the nominee's views on Roe. It's all a sham: the nominee will be carefully vetted on Roe, his or her views will be well-known but not announced at the confirmation hearings, and Roe will be overruled within a year."
So, it would it be naive to believe the president might not know where his appointee stands on Roe v. Wade before Monday?
— Civil rights attorney AREVA MART
IN says: "Incredibly. All of them potential Supreme Court justices on his short list of seven have been thoroughly vetted by the Federalist Society and Heritage Foundation. They made the short list because of their conservative views on a range of issues, including abortion.
"Also, Trump made it clear during his campaign that he would impose a litmus test for any individual that he would even remotely consider appointing to the Supreme Court. That test requires any potential candidate to be committed to abolishing the reproductive rights of millions of women and criminalizing abortions.
"It doesn't matter if the individual selected by Trump engages in the standard obfuscation that most candidates do when questioned during Senate confirmation hearings, their previous commitment to be the decisive vote on Roe v. Wade has already been cemented."
If Roe v. Wade is struck down, what happens in Illinois?
— UI law Dean VIKRAM A
MAR says: "I don't expect Roe to be overturned because Chief Justice Roberts doesn't need to overturn it; the framework in place for the last few decades — a diluted version of Roe — already employs a very malleable 'undue burden' balancing test that a new Court majority can use to uphold laws in many red states that don't prohibit all abortions, but that make abortion very hard to obtain, especially for poorer and rural women. Illinois is unlikely to pass such restrictive laws, but women from neighboring states may come to Illinois for abortions."
Finish this sentence: Monday's will be the most significant Supreme Court appointee since ...
— ROBERTA RAM
O, who in 1995 became the American Bar Association's first female president, says: "Chief Justice Earl Warren, a Republican appointed by President Eisenhower who worked mightily to reach a unanimous decision of the Court in Brown v. Board of Education. This began the process, uncompleted to this day, of making the promises of the Constitution and the Bill of Rights reality for African Americans. He led the way for years of a Court trusted to interpret the Constitution so that all citizens were treated equally under the law.
"The Roberts Court, with this appointment, could reverse the gains that women and minorities once thought were permanently enshrined in previous decisions of the U.S. Supreme Court. Or, individual justices can, as Earl Warren did, accept that the oath taken is to all Americans and the ideals of American justice in our magnificent Constitution — are not to the president who appoints them, or short-term politics or dogma. History and the American people will stand in judgment."
— UMass Professor DWIGHT DUNCAN says: "1803, when Chief Justice John Marshall recognized the power of the Supreme Court to judicially review the constitutionality of laws in Marbury v. Madison. The Supreme Court is now at the tipping point, and Justice Kennedy's replacement will cast the deciding vote."
— New York Times Supreme Court report
er ADAM LIPTAK says: "Justice Lewis Powell announced his retirement in 1987. He was the last swing justice to retire. After the Senate rejected President Reagan's first nominee, Robert Bork, as too conservative, the seat went to Justice Kennedy."
— University of Houston law Dean L
EONARD BAYNES says: "President George W. Bush replaced Sandra Day O'Connor with Samuel Alito. At that time, Justice O'Connor was situated at the center of the court. She sided with the more progressive justices on affirmative action, LGBTQ rights and women's reproductive issues, and with the rest of the Court on other issues.
"Since O'Connor's retirement, Kennedy has served as the swing vote. President Trump's opportunity to replace him is most monumental because the center of the Court is likely to shift once again, probably making Chief Justice Roberts the center."
— Heritage Foundation VP JOHN MA
LCOLM says: "Although neither the current vacancy nor Alito's appointment were as big a shift as when Clarence Thomas replaced Thurgood Marshall, this appointment gives the president an opportunity to replace a quintessential swing vote with a reliable conservative."
With Kennedy out, who becomes the Court's new swing vote?
— Washington University law Dean NANCY STA
UDT says: "It appears that Chief Justice John Roberts has moved into this position. In his new position as the median voter, along with the ability to assign opinions, the Chief's impact on the development of the law will truly be powerful and impactful."
— Former Harvard law Dean MARTHA MINO
W says: "The deciding vote in many high-profile cases may come from a moderate, like Justice O'Connor, who decides cases minimally — limited to specific facts or using procedural rules — or, more rarely, someone who pursues a full-bodied conception of rights or purposes. Justice Kennedy was a rare deciding vote with broad conceptions of advancing human liberty and dignity, open to unfolding human needs."
— University of Arizona law Professor TONI MASSARO says: "In general, the real struggles of the Court now are likely to be about internally competing visions of constitutional conservatism. It now will be John Roberts' Court, not Anthony Kennedy's."
Do Senate Democrats have any hope of derailing Trump's nominee?
— Mazzone says: "There are no roadblocks. Although the Trump administration has been erratic on many policy fronts, with respect to judicial appointments it has proven highly disciplined and effective. Assuming the President nominates somebody from the lists he provided during the election season — or somebody equally credentialed — I expect that person will be confirmed by the Senate without significant delay or difficulty."
— Slate Senior Editor DAHLIA LITHWIC
K says: "Democrats would need to be unified on a theory of why this seat should be blocked and message that coherently and consistently. That would require explaining over and over that the Republicans blocked a vote on an Obama nominee for almost a year on a nonexistent theory and that nobody should be seated now. Since they don't have the votes to block a nomination, that would require keeping red state Senate Democrats in line and picking up a pro choice Republican vote — Collins or (Lisa) Murkowski.
"I think it's likely that the latter two will take cover in pledges to 'respect precedent' with regards to Roe, but again Senate Democrats should be clear that every Republican appointee on the court has made similar pledges and then violated it. It would require a coherent and consistent claim that the president should not be interviewing nominees that may eventually rule on aspects of the Mueller probe while that probe is still pending. And likely, a willingness to shut down Senate procedures if the above messages fail.
"Each avenue requires clear messaging on why the court matters, something Democrats have done rather poorly in recent decades."
— Harvard law grad and
Supreme Court author PETER IRONS says: "Democrats who urge the Senate to block the confirmation of Trump's nominee until after the mid-term elections — out of anger at Senator (Mitch) McConnell's blocking Judge Merrick Garland — are right to denounce Republican hypocrisy. However, they have no power to do their own blocking, with a filibuster now impossible after McConnell changed the rules to prevent that. It will now take only 50 votes — with Vice President Pence casting the deciding vote — to confirm the nominee.
"But a lot depends on whether GOP senators Susan Collins of Maine and Lisa Murkowski of Alaska, both supporters of abortion rights, would vote against a nominee who did not promise to uphold Roe. I wouldn't bet on that, unless the nominee has made clear in his/her opinions or writings a desire to overrule Roe."
— Columbia law Dean GILLIAN LE
STER says: "There are definitely some hazards, with the Republicans holding a bare 51-vote majority in the Senate — including an ailing John McCain. Even with no filibuster, the White House can't lose a single Republican on a party-line vote, which makes things interesting. If the president plays to his base in selecting a nominee, Democrats and independents could easily vote against, and he also risks losing moderate Republican support. At least one and possibly more Republicans would likely vote against a nominee who would openly oppose Roe v. Wade.
"Going for a more moderate nominee, on the other hand, could also be perilous, since the president would have to attract many swing Democrat and independent votes to offset near-certain opposition by Tea-Partiers — and he would be alienating his most steadfast coalition in the process. The end result could be an unpredictable mix of politics and policy; and that probably makes time the White House's biggest roadblock to this appointment. If Republican coalitions engage in protracted infighting over this appointment, the process could drag on into election season — a worst-case scenario for the president and a gift to the Democrats, who seem poised to retake the Senate in the fall."
Senate Democrats contend that the confirmation process should be delayed until after November's elections, when the new Congress is seated, especially given GOP senators' refusal to hold hearings for Barack Obama's 2016 nominee — Merrick Garland — during an election year. Why isn't that a winning argument?
— George H.W. Bush-appointed U.S. Attorney G
eneral BILL BARR (1991-93) says: "I think the rationale for putting off confirmation when close to a presidential election is that the president is the appointing authority, so the identity of the president governs the choice, and it is the presidential election that serves as a check over the long term on the direction of the Court. None of this is true for congressional elections.
"A high percentage of Supreme Court appointees have been confirmed in even-numbered years, including (Elena) Kagan, *Stephen) Breyer and Kennedy. As a practical matter, eliminating half of all years makes no sense. In some ways, the suggestion dramatizes the extent to which the Court has become a super-legislature."
— Ronald Reagan-appointed U.S. Solicitor G
eneral CHARLES FRIED (1985-89) says: "I think we would have been better off with Merrick Garland."
Do you read anything into the timing of Kennedy's decision, which seemed to take many by surprise?
— Lester says: "I'm as baffled as everyone else. The White House had reportedly been talking to Kennedy about his retirement for over the past year, and perhaps he felt he finally had some measure of confidence about the President's inclinations with respect to the next nominee.
"It's important to note that Justice Gorsuch is a former Kennedy clerk, and the President seems to have made signals that he would give strong consideration to another one, such as Brett Kavanaugh or Raymond Kethledge. Whether the White House would stick to any such pledge — having now procured Kennedy's retirement — is, of course, a different matter."
The future of Roe v. Wade has received the bulk of attention lately. What about same-sex marriage — could it be in peril?
— University of Virginia law Professor GEORGE RUTHERG
LEN says: "Not likely. This is mainly because the country has come to accept gay marriage. But wholly apart from that, many gay marriages have since taken place. What would happen to those marriages if Obergefell was overruled? They couldn't be invalidated without immediate legal consequences for vested rights to support, property and custody of children.
"So many gay marriages would have to be recognized, whatever happens to Obergefell. But that means that any transition to a regime, presumably in some states, that did not recognize gay marriage would be very confusing."
What other issues could be most impacted by a new justice?
— Capital University law Dean and U
I law grad RACHEL JANUTIS says: "One area that I think is likely to be affected by Kennedy's retirement and replacement, presumably by a more conservative jurist, would be the law pertaining to criminal sentencing. Specifically, a new, more conservative justice is likely to be more deferential to state judgments about for which crimes the death penalty is appropriate and other substantial criminal penalties such as life in prison without parole.
"A more conservative justice is likely to be more deferential to states in cases regarding the method of execution as well. Kennedy was an important vote in cases which prohibited the imposition of the death penalty for juveniles and mentally disabled as well as prohibiting life in prison without parole for juveniles. ... The Court will hear at least two challenges to the manner by which states carry out death sentences in the near future. Kennedy's absence from the bench is likely to affect the outcome of those cases."
— Malcolm says: "First, I think that a number of the potential nominees appear to be skeptical of Chevron and the other deference doctrines, so the Court may be prepared to revisit Chevron once a new justice is confirmed.
"I also think it is possible that the Court may be willing to take up another Second Amendment case. Other than a brief summary reversal in a 2016 case involving stun guns, the Court has not taken up a Second Amendment case since Heller in 2008 and McDonald in 2010, and the lower courts have been all over the map on the issue and could use some guidance on the contours of the right to 'keep and bear arms.'"
— University of Delaware
law Dean and former UI Professor ROD SMOLLA says: "Affirmative action in college admissions could be abolished by five conservative justices."
— Fourth District appellate Judge ROBERT
STEIGMANN says: "In Plessy v. Ferguson, the Supreme Court upheld 122 years ago the constitutionality of racial segregation laws and came up with the doctrine of 'separate but equal.' Only Justice John Harlan Marshall dissented from that odious decision, and his dissent rings as true today as it did in 1896. He wrote the following:
"In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case."
"My hope is that the addition of another conservative justice on the Supreme Court will finally see this Nation expunge all of the vestiges of the pernicious Plessy v. Ferguson decision and adopt the promise of color-blind law and a color-blind Constitution."
Past appointees have turned out to be less predictable in their rulings than the presidents who chose them. Could that wind up being the case here?
— CNN analyst JEFFREY TOOBIN
says: "It's largely a myth that presidents turn out to be surprised by the justices they appoint to the Court. All nine of the current justices have followed the paths they were expected to take, and that will almost certainly be true of Kennedy's replacement, as well."
— Amar says: "Anything is possible, but presidents and their teams today are much more focused on picking someone whose ideological approach is reliable and consistent. William Brennan, Harry Blackmun and David Souter — and to some extent, even Anthony Kennedy — all surprised the Republican presidents who appointed them, but none of the eight justices who remain on the Court today has an overall voting pattern appreciably different from what experts and appointing presidents — from both parties — could have predicted."
How would you sum up Kennedy's legacy?
— George Washington law Profe
ssor DAVID FONTANA says: "By voting more like a Republican of 1988 than 2018, Justice Kennedy placed the Supreme Court to the right-of-center but not on the far right even after his party abandoned him and his world view and moved to the far right."
— Tulane law Dean DAVID MEY
ER says: "Justice Kennedy stood apart from his more conservative colleagues in his more dynamic understanding of the Constitution. He viewed it as susceptible to new meanings over time and as appropriately interpreted in light of changing social norms. This view supported his embrace of gay rights and a qualified right to abortion."
— Smolla says: "He defended abortion and affirmative action, and courageously championed dignity and equality on matters of sexual orientation."