McConnell: Fall vote on Kennedy's replacement

Senate Majority Leader Mitch McConnell (R-KY) says the Senate will hold a vote this fall to confirm President Donald Trump's yet-to-be-named successor to Justice Anthony Kennedy.

Posted: Jun 28, 2018 2:22 PM
Updated: Jun 28, 2018 2:37 PM

The irony of Justice Anthony Kennedy's legacy probably will be that the areas where he made the greatest difference in the law are the ones that are least likely to survive in the new, resolutely conservative Supreme Court poised to emerge under President Donald Trump.

Justice Clarence Thomas is 70; Samuel Alito is 68; John Roberts is 63; Neil Gorsuch is nearly 51. Absent unforeseen circumstances, they and the new nominee will be the majority for the next 10 to 20 years. For conservatives, this is a time to rejoice. For liberals, it is devastating.

Kennedy came on to the court after the Senate rejected the confirmation of a more conservative nominee, Robert Bork. Although overall Kennedy was more likely to side with the conservatives than the liberals in his 30 years on the court, there were many areas where he was notably more liberal than Bork would have been as a justice. It is expected that Kennedy will be replaced by someone who will be more consistently conservative, and these are the very areas where the law is likely to move to the right.

His most notable contribution to the law has been in the area of gay and lesbian rights. Kennedy has written every Supreme Court decision in history advancing rights for gays and lesbians. For example, in 2013, he authored the decision declaring unconstitutional a key provision of the federal Defense of Marriage Act, and in 2015, he wrote the opinion declaring unconstitutional state laws prohibiting same-sex marriage. Both were 5-4 decisions. I am surprised this is regarded as settled law in light of the vehement dissents, especially by Chief Justice John Roberts.

Kennedy was famously the fifth vote in 1992 in Planned Parenthood v. Casey to reaffirm Roe v. Wade. At the time, Bork publicly declared that he would have come out the other way. Two years ago, Kennedy was the fifth vote to strike down a Texas law imposing restrictions on access to abortion. But his replacement likely will join with the four conservative justices -- Roberts, Thomas, Alito and Gorsuch -- and overrule Roe and allow states to prohibit all abortions.

When Kennedy came on the court, he was a strong foe of affirmative action programs. But over time his views changed and two years ago, he cast the decisive vote to uphold a University of Texas affirmative action program and to reaffirm that colleges and universities have a compelling interest in having a diverse student body. The conservatives, especially Roberts, have left no doubt they want to have all forms of affirmative action declared unconstitutional, and replacing Kennedy will give them the fifth vote.

Although this week he voted to uphold Trump's travel ban, in the past he was a key vote in favor of limiting presidential power and protecting the rights of Guantanamo detainees. For example, in 2008, he wrote the majority opinion in a 5-4 decision declaring unconstitutional a federal law that prevented Guantanamo detainees from having access to federal court via habeas corpus. It is likely there now will be five votes to give more deference to the president.

Kennedy joined the liberal justices in 5-4 rulings limiting the death penalty, such as in preventing it from being used for crimes committed by juveniles or by the mentally disabled or for crimes other than homicides. Some even thought he might become a fifth vote to declare the death penalty unconstitutional. Without Kennedy this isn't going to happen, and these limits on capital punishment might be overruled.

Of course, there are the many areas where Kennedy was the fifth vote for a conservative result: in striking down campaign finance laws, in declaring a law violates the Second Amendment and in many cases this term. In these areas, replacing Kennedy with a conservative is likely to change little on the court.

The simple reality is that a conservative court is about to get much more conservative. And it is going to stay that way for a long time.

Minnesota Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 26980

Reported Deaths: 1159
CountyConfirmedDeaths
Hennepin9099657
Ramsey3351149
Stearns205614
Nobles15775
Anoka152779
Dakota144664
Washington70035
Olmsted68911
Rice5243
Kandiyohi5141
Scott4712
Clay44930
Mower4462
Wright3492
Todd3441
Sherburne2492
Carver2402
Benton1853
Steele1700
Freeborn1590
Blue Earth1490
Martin1355
St. Louis11914
Lyon1012
Unassigned9611
Pine930
Nicollet8811
Cottonwood820
Winona8115
Crow Wing815
Watonwan790
Carlton750
Goodhue736
Otter Tail731
Chisago691
Polk632
Itasca5610
Dodge540
Chippewa521
Morrison480
Le Sueur471
Douglas460
Meeker460
Becker440
Jackson420
Murray410
McLeod410
Isanti360
Pennington300
Waseca290
Mille Lacs241
Rock230
Faribault220
Wabasha200
Swift191
Beltrami180
Sibley170
Brown172
Fillmore171
Norman150
Pipestone130
Kanabec121
Aitkin120
Marshall120
Cass112
Big Stone110
Wilkin113
Wadena100
Pope100
Koochiching90
Redwood70
Yellow Medicine70
Renville70
Mahnomen61
Lincoln60
Red Lake40
Traverse40
Grant40
Clearwater30
Houston30
Hubbard30
Lac qui Parle30
Roseau30
Stevens10
Lake10
Kittson10

Iowa Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 21114

Reported Deaths: 593
CountyConfirmedDeaths
Polk4614140
Woodbury286137
Black Hawk178849
Buena Vista10672
Linn97879
Dallas95226
Marshall91418
Wapello63615
Johnson6198
Muscatine56741
Crawford5512
Tama41129
Scott38510
Dubuque35921
Louisa35011
Pottawattamie31910
Sioux3060
Jasper26917
Wright2210
Washington1968
Warren1671
Plymouth1522
Story1311
Allamakee1204
Mahaska9913
Poweshiek928
Hamilton760
Webster741
Henry732
Boone720
Bremer716
Clarke690
Des Moines681
Taylor660
Clinton651
Guthrie553
Cedar501
Benton431
Cherokee410
Monroe415
Jones370
Shelby370
Osceola360
Jefferson360
Marion350
Dickinson350
Buchanan341
Iowa340
Clayton343
Cerro Gordo331
Madison292
Lee290
Sac280
Davis280
Emmet270
Fayette270
Clay270
Monona260
Harrison260
Hardin240
Lyon240
Winneshiek240
Lucas222
Mills200
Grundy200
Franklin200
Humboldt201
Pocahontas200
Delaware191
Floyd191
Hancock180
Appanoose173
Butler161
Kossuth160
Carroll151
Ida150
Greene150
Keokuk140
Jackson140
Page140
Audubon131
Cass130
Chickasaw130
Howard120
Winnebago110
Calhoun100
Union100
Van Buren90
Adair90
Montgomery92
Adams70
Palo Alto70
Ringgold40
Fremont40
Mitchell40
Worth30
Unassigned20
Wayne10
Decatur10
Rochester
Scattered Clouds
73° wxIcon
Hi: 80° Lo: 61°
Feels Like: 73°
Mason City
Broken Clouds
78° wxIcon
Hi: 82° Lo: 64°
Feels Like: 79°
Albert Lea
Scattered Clouds
79° wxIcon
Hi: 80° Lo: 64°
Feels Like: 79°
Austin
Scattered Clouds
77° wxIcon
Hi: 81° Lo: 65°
Feels Like: 78°
Charles City
Scattered Clouds
77° wxIcon
Hi: 81° Lo: 62°
Feels Like: 78°
Weekend looks nice
KIMT Radar
KIMT Eye in the sky

Latest Video

Image

Chris' PM Weather Forecast 6/5

Image

Gyms, fitness centers set to reopen

Image

Easing restrictions for MN restaurants and gyms

Image

Charles City vigil for George Floyd

Image

Hawkeye Harvest Foodbank partnership

Image

Next phase of Minnesota reopening

Image

Rental Assistance program for Rochester

Image

IA Care Homes Could Reopen to Visitors

Image

'Color Me Mine' Location Closes for Good

Image

Getting Your Fair Food Fix During the Pandemic

Community Events