By Robert Willmann
While the U.S. Supreme Court issued some decisions and opinions of note this term for discussion, once again the subject was "overtaken by events", as the State Department is fond of saying. On Wednesday, 27 June 2018, Judge Anthony Kennedy went to the White House to tell president Trump and then announced by a letter that he would be retiring--
Judge Kennedy was appointed by president Ronald Reagan and took the oath of office on 18 February 1988. His letter makes clear that his position as an associate judge will end on 31 July of this year, but that he will take "senior status" under Title 28, United States Code, section 371(b). This means that he will retain the office but retire from regular active service . Federal judges with senior status continue to participate in some cases, and Judge Kennedy will likely do so until his successor is confirmed and sworn in.
The unexpected news jumped to the forefront, and the voluble Chris Matthews on the MSNBC television network almost had a cow shortly after the announcement, he was so distraught that another judge would be appointed with the present makeup of the U.S. Senate and executive branch. But that is the least of it.
Blowback. What goes around comes around.
Barack Obama, while president, got together with the Democratic majority leader of the Senate, Harry Reid (now retired), and the "filibuster rule" in the senate -- technically, the "cloture rule" -- was changed for confirmation of executive branch nominees and of federal judges such that it would apply only to Supreme Court judges and not for other federal judge nominees. They did it by muscling through an interpretation of a senate rule, calling it a new "precedent", without actually changing the rules. This allowed Obama to get nominations for federal district judges (the trial court) and circuit judges (courts of appeals) confirmed by a simple majority vote of 51 senators, or 50 senators plus the vice-president, or a simple majority of the members present, provided there is a quorum. The concept of "cloture" has taken the place of the traditional filibuster. A vote on cloture is a vote to end unlimited debate when a nomination or item is on the floor for consideration, and requires 60 votes to pass, so that an up-or-down vote can then be taken on the item or nomination being considered. This paper from the Congressional Research Service (CRS) explains the Obama change of 2013--
Rather than leaving well enough alone, the Democrats shot themselves in the other foot in 2017 after Trump nominated Neil Gorsuch to the Supreme Court place held by Judge Antonin Scalia until he died in February 2016 .