U.S. Supreme Court Justice Anthony Kennedy announced his retirement this week, which gives President Donald J. Trump the chance to appoint a second justice to the country's highest court.
Three potential candidates on Trump’s short list are from Michigan: Judge Raymond Kethledge and Judge Joan Larsen, who both serve on the 6th U.S. Circuit Court of Appeals, as well as former Michigan Supreme Court Justice and Republican Senate candidate Robert P. Young.
Young, however, told Watchdog News via email that he will not be contending for the position.
Although Kennedy was appointed by Republican President Ronald Reagan, he has parted with some conservatives on key issues. He was the swing vote that upheld Roe V. Wade in 1992, has actively supported gay marriage, actively criticized the death penalty and has a mixed record on affirmative action. Depending on who the president nominates, he has the ability to reshape the Supreme Court on these issues and give the edge to conservatives if he chooses.
The other eight justices on the Supreme Court are split ideologically, 4-4.
Supreme Court justice nominations must be confirmed by a majority in the U.S. Senate, and a tie would be broken by Vice President Mike Pence. Although Republicans hold the Senate majority now, Trump has sometimes had trouble courting key votes from GOP moderates. With midterms approaching, it’s uncertain who will hold the Senate come January, which gives the president a short window in which he is guaranteed to have a Republican majority.
Here is a profile on the two potential nominees and how they’ve ruled in some of these key issues:
Larsen graduated first in her class from Northwestern University School of Law. She served on the Michigan Supreme Court before being appointed to the 6th U.S. Circuit Court of Appeals. Prior to that, Larsen clerked for former U.S. Supreme Court Justice Antonin Scalia, who was known for his staunch support for originalism in interpreting the Constitution. Scalia sided with conservatives on issues such as abortion, gay marriage, the death penalty and affirmative action; issues in which Kennedy sometimes broke away.
Larsen, although she hasn’t said whether she would vote to overturn Roe V. Wade as a U.S. Supreme Court justice, commented on the matter as a justice on the Michigan Supreme Court. According to Mlive, she said "As a justice on the Michigan Supreme Court ... there's no opportunity for me to be a no vote on Roe, and I would not be. I would be bound by the precedents of the Supreme Court of the United States." However, she was previously endorsed by the pro-life Susan B. Anthony List.
Regarding gay rights, Larsen was criticized by 27 LGBT groups over concerns that included her support for the Defense of Marriage Act and opposition to the Supreme Court’s decision to strike down Texas’s anti-sodomy law. However, when asked about gay rights in a Senate hearing for her appointment to the appeals court, she said, “I wouldn’t want a litigant in any court, including my current court, to think I wouldn't follow the precedents of the U.S. Supreme Court, because I absolutely will.”
Kethledge graduated magna cum laude from University of Michigan Law School. He serves as a judge on the 6th U.S. Circuit Court of Appeals and previously served as a clerk for Justice Kennedy himself. In Kethledge’s confirmation hearing, he was asked whether he saw the Constitution as a living document or as a strict constructionist, to which he said “I don't really have a label” and “first and foremost, I would follow Supreme Court precedent.”
Regarding the death penalty, Kethledge voted in favor of Ohio’s use of a controversial lethal injection drug. He said “some risk of pain is inherent in any method of execution – no matter how humane,” and that “the Constitution does not guarantee a pain-free execution.”
On the issue of affirmative action, Kethledge recused himself from a case regarding an anti-affirmative action law that would have ended racial preferences in university admissions because of his ties to the University of Michigan. However, in 2014, Kethledge wrote an opinion in an Equal Employment Opportunity Commission case that would have limited a private employer’s ability to perform credit card background checks in the application process because the EEOC alleged racial discrimination. Kethledge, however, rejected the argument, calling the credit check racially blind because “the vendor does not report the applicant’s race with her other information.”