Home » Advice & Consent 2.01: Justice Kennedy Retires

Advice & Consent 2.01: Justice Kennedy Retires

Associate Justice Anthony Kennedy announces his retirement. It’s an #emergepod kickoff for season 2 to discuss what this means for the future of the Supreme Court.


Welcome to the Advice & Consent Podcast: news views and insight on the future of the supreme court. Shownotes and more are available at scotuscast.com. Email us at advice@scotuscast.com…. Check us out on Twitter and Facebook too. I’m Tim Mooney, joined by a member of the ragtag gang of the usual suspects… Adam Shah! Lena Zwarensteyn is on assignment.


Justice Anthony Kennedy announces his retirement


Oh, have you heard? Effective 7/31/18


Fox News




Initial thoughts:


  • This will go fast, but not as fast as possible – while there is *almost* no upside for Don or the GOP to tap the brakes, there’s a sense I get that the GOP sees this as a political advantage in the midterms. They have a shortlist, they have the votes, so why not leverage that? Evidence? McConnell says the confirmation will be “this fall” — they could do it in August if they wanted to.
  • The calls for Dems to *really* do something dramatic via some super secret Senate rule (hi Chris Matthews) are really unlikely to work. Yes, the Senate works on unanimous consent, but are the Dems really prepared to go super-nuclear and force votes on *everything* to delay? And won’t the GOP majority just change the rules on them?
  • Also: no, Susan Collins is not coming to the rescue…
  • No, Senator Maverick is not going to bring his downturned thumb… he has much bigger things to deal with, and — real talk — he wasn’t going to side with Dems anyways.
  • No, cries of hypocrisy that we’ve got an election coming up will not shame GOP Senators to hold off to remain intellectually consistent. The McConnell/Biden Rule has already miraculously narrowed to lame duck Presidential election years.
  • Yes, this is a big deal: long-standing precedents are subject to change (privacy, abortion, death penalty, civil rights, voting rights, affirmative action…and if we’re full “hair on fire” mode:  a fallback to Lochner?)
  • No, it’s not overstating things to say if Gorsuch 2.0 is confirmed, women’s right to choose will be illegal in about 20 states sometime next year. This will impact poor women the most. To pull a random pop culture hip hop reference: This is America.
  • Democrats are likely to fight this like the Constitution is at stake… because in a real sense, it is.




  • Who will be nominated from The List?
  • How do the Dems react, assuming a Gorsuch 2.0 style nominee? Normal procedure? Gridlock? Boycott? Some jumbled combo of the three?
  • What, if any, political consequence will this have on November? Will it galvanize Republicans and balance out The Blue WaveTM ? Will the generational change on the Court supercharge the effort by Dems to flip the Senate?




Super-fast may be the way to go because of the problem of a skeleton coming out.

Only three Republicans have voted against a Republican SCOTUS nominee starting with Thomas 26 years ago. Two of them left the party within a few years. So, in 26 years, only one Senator who is OK with today’s Republican Party has voted against a nominee (fun/awful fact: Bob Packwood is the one. He voted against sexual harasser Clarence Thomas and a couple years later had to acknowledge his own massive sexual harassment and then resign.)


The Pod, Season 2


Format, frequency, and everything else is TBD. Stay tuned! Next episode will likely include a look at some of the members of The List.

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