Former Supreme Court Justice Anthony Kennedy kept his plans to retire from the high court a closely guarded secret all the way up until the last moment, according to a new book that details Justice Brett Kavanaugh’s 2018 confirmation battle.
Washington’s biggest secret
In the new book “Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court,” excerpts of which were obtained by the Washington Examiner, authors Carrie Severino and Mollie Hemingway explain how even President Donald Trump was “surprised” when Kennedy appeared at the White House in 2018 carrying a letter of resignation.
The news of Kennedy’s retirement threw Washington into turmoil, resulting in one of the most contentious confirmation hearings in U.S. history. The then-81-year-old justice was frequently a swing vote who frustrated conservatives by siding with the left on a diverse range of social issues, from abortion rights to gay marriage.
Hemingway, a senior editor at The Federalist, and Severino, who works as the chief counsel at the Judicial Crisis Network, explained how Kennedy avoided leaking any news of his retirement to the press. The first person to hear about Kennedy’s pending retirement plans was his former clerk Steven Engel, who now heads the Justice Department’s Office of Legal Counsel. He told Engel that he planned to retire during a low-key meeting at an outdoor cafe near the National Gallery of Art’s Sculpture Garden, two days before the end of the Supreme Court’s term.
Kennedy planned to inform his colleagues of his decision following the Supreme Court’s final session on June 27, 2018. Next, Engel met with then-White House counsel Don McGahn to set up a discreet meeting with the president to inform him of Kennedy’s intention to retire.
Loose lips sink ships
In rapid succession, the justice told his colleagues at an end-of-term luncheon that he was stepping down after 30 years on the high court, before jumping into a black car from the White House Military Office and setting off for the White House.
Bearing a letter of resignation, Kennedy met Trump at the White House to formally discuss the matter. The pair spoke for about 20 minutes before Kennedy returned to the Supreme Court, “no one the wiser as to what had just taken place,” Severino and Hemingway recalled.
According to the book, the president “was surprised by Kennedy’s retirement but not unprepared.”
“The biggest secret in town had remained a secret until the end,” the pair wrote. “Justice Kennedy was retiring on his terms. The news was then released, and it rocked Washington.”
Art of the deal
Trump may have been “surprised” when Kennedy arrived with his letter of resignation, but his administration played an integral role in assuring the judge that it was safe to do so, the authors wrote.
Justice Neil Gorsuch, who was appointed in 2017 to replace the late Antonin Scalia on the Supreme Court, was a former law clerk of Kennedy’s. During his swearing-in ceremony, Trump observed that “it’s a fitting testament to Justice Kennedy’s impact that upon giving the oath to Judge Gorsuch, he’ll become the first-ever Supreme Court justice to serve with one of his former clerks.”
The White House worked closely with Kennedy prior to his retirement, picking several judges to fill several vacant positions on the federal court of appeals. When one of these jurists reportedly called Kennedy a “judicial prostitute,” the president’s legal counsel let the nomination expire rather than upset the Supreme Court justice, according to the book.
Even during Trump’s 2016 presidential campaign Kennedy “was eager to help” compile a list of future Supreme Court candidates, according to Severino and Hemingway. That list of six candidates included Brett Kavanaugh, who eventually went on to become Trump’s second nominee to the high court.
Kavanaugh’s confirmation process took weeks to complete after allegations of sexual assault going back decades were brought to the fore. However, Kavanaugh strongly denied these allegations and after investigations came up empty, he was eventually confirmed by the Senate along close party lines.
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