The turmoil surrounding President Trump could affect Supreme Court Justice Anthony Kennedy's decision to retire, some court watchers say, although others think the scandal surrounding Trump's firing of FBI Director James Comey will not change his thinking.
Rumors of Kennedy's potential retirement have abounded for many months, but gained new attention after multiple Republican senators on the Judiciary Committee suggested another vacancy would come this summer.
South Texas College of Law professor Josh Blackman said he does not think Comey's firing and news of Trump's conversations with Comey will affect Kennedy's thinking about whether to retire, which liberals hope he does not do.
"I think [Kennedy] has an idiosyncratic understanding of reality," Blackman said. "Because of his insularity as a judge, he may not have the same concerns as someone embedded in politics."
Blackman noted that if Kennedy retired at this point in the year, it would happen later than several recent justices have. But, Blackman added, it's "plausible" Kennedy would wait until the end of the term to make a retirement announcement because of how he appears to enjoy keeping people guessing.
A source familiar with the judicial selection process who has advised the White House said they did not know whether the turmoil ensnaring the Trump administration would affect a justice's decision about retirement but that it ought not do so.
"I don't think that what's currently happened should have an impact," the source said. "The fact of the matter is you have a special counsel appointed who is extraordinarily well-respected across party lines and throughout Washington, D.C."
The appointment of former FBI Director Robert Mueller as special counsel for the FBI's investigation into any Trump ties to Russia ensures that there is not the kind of political uncertainty and chaos over "the next few months to a year" that there otherwise would have been, the source argued.
Kennedy has been "sensitive to how people have portrayed him," contended Neal Devins, Sandra Day O'Connor law professor at the College of William and Mary in Williamsburg, Va.
"There is reason to believe that at the margins [the turmoil surrounding Comey's departure] would matter to him, now there may be other things going on involving his health or involving other circumstances that would trump — pardon my language — that would take precedence over near anything else," Devins said. "But assuming he's in good health, the question becomes why retire now when there is such chaos in Washington when perhaps in a year things will stabilize one way or another, whatever that means?"
Devins said he thinks Kennedy, unlike other Republican-appointed justices, is "very cognizant" of not wanting to appear ideological. Kennedy often is the swing vote in the Supreme Court's 5-4 decisions.
"If you think about Kennedy, he's probably a Robert Mueller, Jim Comey, kind of Republican in a way—and that doesn't mean he will retire," Devins said.
Multiple former law clerks for Kennedy declined to comment, citing their lack of knowledge or desire to avoid creating the impression that they were anticipating a retirement. It remains likely, however, that only Kennedy knows what he will do.
The firing of an FBI director does nothing to change the president's power to fill vacancies on the court, noted Richard W. Garnett, Notre Dame Law School professor and former clerk to then-Chief Justice William H. Rehnquist. But, he said, whether the political turmoil affects any justice's willingness to retire remains unanswered.
"I do believe that, generally speaking, it is unhealthy for our constitutional order that justices stay on the court so long," Garnett said. "It is not a good thing for a Supreme Court justice to start to imagine that he or she is somehow indispensable. If it were politically feasible to make the change, I'm inclined to think it would be good policy if members of the court had fixed terms, or mandatory retirement ages, or both."
Such changes appear unlikely in the current political environment. Whether Kennedy willingly wants to give up his influence as the high court's decisive swing vote in several contentious cases may matter as much to the 80-year-old justice as anything happening inside the other branches of the government.