When the Supreme Court closed out its session today, the lack of any “special” announcements seemed to indicate that the same nine justices would return in the fall. Just a few hours later, Anthony Kennedy transmitted his intent to retire at the end of this month to the president. Now Donald Trump has a little over three months to nominate a replacement for the court’s center, potentially moving the Supreme Court even further to the Right:
— Kimberly Robinson (@KimberlyRobinsn) June 27, 2018
Justice Anthony Kennedy, a conservative who provided key votes for same sex-marriage, abortion access and affirmative action, will retire from the Supreme Court.
Kennedy’s decision to step down could transform the Supreme Court for generations. President Donald Trump will have his second opportunity to nominate a justice and will likely replace Kennedy with a young, conservative jurist. That would create a bloc of five staunch conservative justices who could move the court further to the right and cement a conservative majority for the foreseeable future.
The move couldn’t possibly be timed any better — for Republicans, especially in Senate races. Mitch McConnell will want to get the confirmation wrapped up in time for the start of the next session of Congress, especially since it’s not entirely clear whether he’ll still be in charge in January. But this fight will remind Trump voters who might have lost some enthusiasm over the last year or so that elections matter. Even if McConnell manages to get someone across the finish line before the midterms, the issue will dominate the political debate and get GOP voters motivated, even those who don’t especially care for Trump himself. They care about the Supreme Court, without a doubt.
However, that doesn’t make a confirmation a slam dunk. Thanks to the fumblaya in Alabama, Republicans only have a 51/49 edge in the Senate. One of those is a very sick John McCain who would normally support practically any conservative jurist, and the other is Rand Paul, who has proven to be a wild card at times. If McCain can’t make it to cast a vote, a 50-vote confirmation becomes a very close-run affair. It’s not impossible, but it’s no slam dunk either.
So who gets the nod? When Trump nominated Gorsuch, the runner-up was apparently Thomas Hardiman, one of the people on his campaign list. He could stick with Hardiman, who got somewhat less effusive praise as a potential selection than Gorsuch did, or he could try for a shot at defanging Democratic opposition by nominating a woman to the post. Two women on his list, Joan Larsen and Allison Eid, got confirmed to appellate courts last fall. Another, Margaret Ryan, has served on the armed forces appellate court since 2006 and is only 54 years old. Ryan clerked with Michael Luttig and Clarence Thomas earlier in her career.
Trump has already confirmed that the next nominee will come from the same list:
Big news from the pool — Trump says he will pick Anthony Kennedy’s replacement from his existing list of 25 potential nominees. That’s the same list he used to pick Neil Gorsuch.
— Kaitlan Collins (@kaitlancollins) June 27, 2018
Trump said Wednesday shortly after Kennedy’s announcement that a search for his replacement would begin immediately and he thanked the justice for his service. …
A Trump-nominated successor to Kennedy would likely become the court’s fifth reliable conservative, joining Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Gorsuch. Because only Thomas has declared opposition to Roe v Wade, it’s uncertain whether opponents of abortion would have the five votes needed to overturn it.
Replacing Kennedy might move the court more to a pro-life position, but that won’t be the earthquake that some might expect. That will happen if or when one of the liberal justices on the court leaves and Trump picks the nominee. Republicans had better pick up several seats in the midterms to prepare for that eventuality, because they might lose a GOP vote or two on that basis alone.
Update: Mitch McConnell said the vote will take place this fall:
MCCONNELL: "We will vote to confirm Justice Kennedy’s successor this fall."
— Phil Mattingly (@Phil_Mattingly) June 27, 2018
Presumably in the early fall, no later than the last week of October. And maybe no sooner?
Update: Mike Lee was a no for Trump’s first pick, but is he open to the idea now? Maybe:
Lee: “I started watching Supreme Court arguments for fun when I was 10 years old. So if somebody asked me if I would consider that I would not say no. But the president’s got a decision to make and I trust his ability to make it and make it well.”
— Erica Werner (@ericawerner) June 27, 2018
Spoiler: It’s not going to be Lee. That would leave Republicans with effectively 49 seats in the Senate, with McCain out indefinitely. Trump needs Lee to confirm the nominee, but Mitch McConnell needs Lee to maintain control of the Senate. It’s fun to speculate about it, but that would be a strategic error.
Update: In the instant handicapping, the women seem to be mainly in the lead here at Salem Media Group:
My opening line: Judge Kavanaugh 2:1; Judges Barrett and Willett 3:1; Judge Larson 4:1. The latter 3 have the advantage of having just recently been on the receiving end of a full field FBI investigation and positive votes. Judge Barrett raises the No Religious Test issue as well
— Hugh Hewitt (@hughhewitt) June 27, 2018
Gut feeling is that among these three, Larsen may be the strongest pick. Not yet 50, strong credentials, judicial & elite law background, earned supermajority Senate support just months ago. https://t.co/qPcLQhkmf2
— Guy Benson (@guypbenson) June 27, 2018
I’m not sold on the idea of Trump nominating people who have just gotten confirmed to the appellate court, but it’s certainly possible. Ryan avoids that and helps McConnell by not being someone already nominated by Trump, which might help swing a couple of red-state Democrats who will be feeling the heat in the fall. And as Guy reminded me in a subsequent tweet, Ryan got confirmed by unanimous consent in 2006.
Update: Politico got the audio from a DNC committee meeting when the news came through. They’re … not happy:
How it sounded inside a DNC committee meeting the moment Justice Kennedy’s retirement was announced pic.twitter.com/6S9uO2JGzQ
— David Siders (@davidsiders) June 27, 2018
Wailing and gnashing of teeth implied, of course.
Update: McConnell has confirmed that the confirmation vote will take place before the midterms. In the clip below, McConnell only says “this fall,” but media outlets report that he was more specific later:
— CBS News (@CBSNews) June 27, 2018