The Trump administration has quietly encouraged Supreme Court Justice Anthony Kennedy to retire in recent weeks, sending signals meant to coax him into leaving the bench.
The signals have been delivered with the subtlety of a hand grenade.
The most clear indication came late Monday. The New York Times’ Adam Liptak, citing administration sources, reports the White House has identified Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit and Judge Raymond Kethledge of the 6th U.S. Circuit Court of Appeals, as the frontrunners for the next appointment to the high court. Both men clerked for Kennedy early in their careers, and are widely respected as serious and sober jurists. As such, the purpose of the leak is plainly to reassure an “embarrassingly dramatic” Kennedy, no doubt brooding over his retirement through comparisons to the greatest archetypes of literature.
The administration has also placed former Kennedy clerks in prominent posts throughout the U.S. Department of Justice. The president has named Rachel Brand associate attorney general and Steven Andrew Engel assistant attorney general, both alums on Kennedy’s chambers.
Judge Neil Gorsuch’s nomination tracks this strategy. In the first place, Gorsuch himself was also a Kennedy clerk, and — if confirmed — will become the first justice to serve concurrently with a justice for whom he clerked. The pick should be encouraging to Kennedy in a second regard. Though Trump has selected a deeply conservative judge to succeed the late Justice Antonin Scalia, he has also selected a serious scholar whose disciplined jurisprudence has won the respect of left-wing legal commentators and scholars.
A tenacious pick, like Judge William Pryor, a firebrand of the 11th U.S. Circuit Court of Appeals, would likely have troubled Kennedy, prompting him to do battle with the actuarial tables and wait out the Trump White House. In picking Gorsuch, Trump has signaled to Kennedy that he can trust him to select his successor.
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