Justice Anthony Kennedy’s departure from the Supreme Court will no doubt increase the output of one of Washington’s main commodities: pundit speculation. But the long-term impacts of his resignation will not be known for some time.
The Senate fight over his successor is almost certain to be a nasty one, given that Majority Leader Mitch McConnell, R-Ky., did not allow a vote on former President Barack Obama’s nominee, D.C. Circuit Court of Appeals Judge Merrick Garland, in 2016 after the death of Justice Antonin Scalia.
Shortly after Kennedy announced he was resigning, McConnell went to the Senate floor and announced that the Senate would vote on a successor to Kennedy this fall. “It’s imperative that the president’s nominee be considered fairly and not subjected to personal attacks,” he said.
Senate Judiciary Chairman Chuck Grassley said that he expected Trump to make the nomination soon. “I look forward to having the nominee before us in the Senate Judiciary Committee for his or her hearing in the weeks ahead.”
Grassley said Kennedy had “made his mark as a staunch defender of First Amendment rights, especially the freedom of speech and religious liberty.”
There had been rumor of Kennedy’s retirement for months, but Wednesday he made it official, announcing he would leave the court July 31 because he wanted to spend more time with family. The 81-year-old jurist has been a federal judge for 43 years, including 30 on the Supreme Court.
In that time, he has become known as a moderate and the court’s key swing vote, a role he played in a critical Clean Water Act decision whose ramifications are still being dealt with by courts and the federal government.
In Rapanos v. U.S., Kennedy was the “one” in the middle of a 4-1-4 decision that attempted to define the limits of the government’s authority to regulate “waters of the United States” as defined in the Clean Water Act.
Justice Antonin Scalia wrote the plurality opinion, which held that “waters of the U.S.” should only refer to "relatively permanent, standing or flowing bodies of water," not "occasional," "intermittent," or "ephemeral" flows.
Kennedy’s concurring opinion took issue with much of his colleague’s reasoning. He said that “the Corps’ jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Lower courts have used Kennedy’s opinion, which had more in common with the dissenting opinion, as the legal standard to judge other challenges to “waters of the U.S.” jurisdiction.
The Environmental Protection Agency is in the middle of an administrative process to rewrite the ground rules for determining “waters of the U.S.” (WOTUS), using Scalia’s opinion as a benchmark. The agency recently sent its proposal to the Office of Management and Budget for review.
Liberal groups are worried about the impact of Kennedy’s departure. People for the American Way said in May that "the addition of one more far-right conservative justice could remove a substantial proportion of our nation’s waters from federal environmental protection under the Clean Water Act."
The American Farm Bureau Federation's general counsel, Ellen Steen, offered a short comment. "Our third branch of government functions best with nine justices on the Supreme Court. We hope for a well-qualified nominee and a quick confirmation," she said.
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