Will Justice Kennedy Stick Around Next Year? He Just Dropped A Hint

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Kevin Daley Supreme Court correspondent
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Justice Anthony Kennedy has hired a full complement of law clerks for the Supreme Court’s 2018 term, a development that may indicate he is not planning to retire in the near future.

Above the Law’s David Lat confirmed Thursday that Kennedy, 81, has retained Aimee Brown, Alex Kazam, Clayton Kozinski, and Conrad Scott as clerks for the Court’s next term, which begins in October 2018. Staffing his chambers through 2019 suggests the justice does not plan to leave active judicial service in the coming months, as some court-watchers have lately speculated.

The clerkship hires do not definitely indicate that Kennedy has no immediate retirement plans. Clerks “orphaned” during or in advance of their term of service are generally staffed out to other justices. NPR’s Nina Totenberg reported in July that Kennedy has alerted applicants to this possibility.

Other factors could induce Kennedy to retire by the end of this term. Despite unfavorable political geography, Democrats may seize control of the Senate in the 2018 elections, foreclosing the possibility of further Supreme Court confirmations until at least 2020. It is difficult to imagine Kennedy retiring under circumstances that would leave the Court short-handed for an indeterminate period of time. Therefore, the justice may wish to withdraw while Republicans still control the upper-chamber, ensuring his successor will be confirmed in due course.

He may also find encouragement in signals from the White House. The Trump administration has subtly prodded Kennedy to retire, elevating the justice’s former clerks to prominent posts in the administration so as to signal that Kennedy should trust the president to select a fitting successor. Two senior Trump appointees to the Department of Justice, Associate Attorney General Rachel Brand and Assistant Attorney General Steven Andrew Engel, are both alums of Kennedy’s chambers.

To make matters yet more clear, White House sources told The New York Times’ Adam Liptak in February that Judges Brett Kavanaugh and Raymond Kethledge, Kennedy clerks both, are frontrunners for Trump’s next Supreme Court appointment.

Justice Neil Gorsuch’s nomination tracked this strategy. Gorsuch clerked for Kennedy during the Supreme Court’s 1993 term.

Speculation notwithstanding, Lat’s report is an important development — but as is typical of anything relating to Anthony Kennedy, it’s difficult to know what to make of it.


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