Justice Anthony Kennedy Retires as Last Unanimous Supreme Court Pick

Associate Justice of the U.S. Supreme Court Anthony Kennedy's retirement announcement Wednesday sets up what could be one of the most vicious congressional fights over a nomination for the body.

Kennedy, who was nominated by President Ronald Regan and confirmed in 1988, was the last justice to garner a unanimous confirmation vote. He got a yes vote from 97 senators, 47 Republicans and 50 Democrats, with three senators sitting out.

Since Kennedy was seated on the Supreme Court, the process has become much more contentious and partisan, with President Donald Trump's pick, Neil Gorsuch, garnering one of the lowest confirmation totals in recent history.

Before last year, Supreme Court picks were vetted by the Senate Judiciary Committee, which would report a favorable, unfavorable or no recommendation at all to their colleagues. From there, a procedural vote took place that required a 60-vote majority to move on to the nomination vote, which requires a simple majority.

Last year, Republican Senate Majority Leader Mitch McConnell, through a series of parliamentary maneuvers known as the "nuclear option," eliminated the 60-vote majority to end debate, changing it to a simple majority. The move piggybacks on a similar decision made by Democratic Senator Harry Reid, who used the option for lower court judges in 2013 when he was the majority leader.

McConnell's nuclear option came after a long battle in which, as the leader of a Republican Senate, he denied a vote on a pick by Barack Obama to replace Justice Antonin Scalia, who died in early 2016. McConnell argued that in an election year the voters picking the next president should have a say in nominating the next Supreme Court justice, and essentially ran out the clock until Trump became president and nominated Gorsuch.

Gorsuch only got 54 yes votes, 51 Republicans and three Democrats.

In the last 50 years, Gorsuch's low confirmation total is only topped by Clarence Thomas's, in 1991. Thomas's nomination was the subject of vigorous debate due to allegations of sexual harassment by his former employee Anita Hill. Thomas initially sailed through Senate hearings, but those were reopened when an FBI report with Hill's allegations made it into the press. Thomas, nominated by George H.W. Bush, was confirmed by only 52 senators, 41 Republicans and 11 Democrats.

After Ruth Bader Ginsburg attracted a bipartisan 96 votes for her 1993 confirmation, the margin of victory has become smaller and smaller.

Since the "nuclear option" was enacted by McConnell last year, it appears as if there is little Democrats, who are in the minority, can do to stop a Supreme Court pick. Kennedy was seen as the court's "swing vote" between the equal conservative and liberal wings of the nine-person judicial body. If Trump is able to successfully confirm a conservative judge, it appears as if the court will shift against the liberal wing.