WASHINGTON — President Trump has tamed a Republican Congress and aggressively asserted executive power. Now, with the retirement of Supreme Court Justice Anthony Kennedy, he can cement his influence over the third branch of government.
Trump has the opportunity to shape the direction of the high court for years to come by replacing the swing vote on the court with someone more conservative, giving the right-leaning wing a more reliable 5-4 majority.
And, from a raw political calculus, Trump and the GOP also get a boost heading into the midterm elections from a conservative voter base that will be galvanized anew by a polarizing Supreme Court confirmation battle.
Even though Senate Republicans want to hold a confirmation vote before the November elections, stakes in the fight for control of the Senate just got even higher. The health of 85-year-old Ruth Bader Ginsburg quickly became cause of renewed concern among liberals. And throughout Washington, summer vacation plans are being shuffled as all sides prepare to dig in.
Interest groups were already blasting e-mails Wednesday and readying multimillion-dollar war chests for the confirmation fight. The Supreme Court opening instantly injects toxic battles over reproductive rights and gay marriage into a midterm election season that was already playing out at a fever pitch over Trump’s forced separations of immigrant children.
“You’re about to see a base motivator on steroids,” said Scott Reed, a longtime Republican operative who is the chief strategist for the Chamber of Commerce. “The beauty to a Supreme Court vacancy is it brings together economic conservatives, social conservatives, and national security conservatives. . . . The timing of this could not be better.”
Giddy conservatives relish the prospect of greater abortion restrictions, expanded rights for gun owners, and curbs on gay marriage and transgender rights that could result from a court further shaped by Trump.
“The Kennedy retirement gives President Trump a huge opportunity to change the Supreme Court perhaps for decades by solidifying a conservative majority,” said Carl Tobias, a professor at the University of Richmond School of Law.
Asked about the mood among Democrats, Senator Sherrod Brown of Ohio said, “It’s not joy.”
That’s certainly an understatement for the minority party at a traditional moment of power for a president. For a chief executive whose party controls the Senate, when a Supreme Court justice retires it’s like pulling four of a kind in poker — especially now that the GOP has abolished filibuster rules for Supreme Court confirmations. Republicans can confirm Trump’s nominee with a simple majority.
The current balance of power in the Senate is 51 to 49 in favor of Republicans. It’s so closely divided that, if no Democrats vote in favor and if John McCain’s battle with brain cancer leaves him unable to vote, one Republican defection could cause the nomination to stall. Retiring Republicans like Jeff Flake of Arizona or Bob Corker of Tennessee could choose to buck the president, and those running in close elections like Dean Heller in Nevada could see peril in voting for a staunch conservative pick.
Similarly, Democrats running in conservative states — such as Joe Manchin in West Virginia, Claire McCaskill in Missouri, and Heidi Heitkamp in North Dakota — could feel pressure to support the president’s nominee.
Kennedy was a moderating force on the court. He sided at times with conservatives — writing for the majority in Citizens United, which allowed unlimited corporate spending on political campaigns — but also sided with the liberal wing of the party at times on gay rights, abortion rights, and affirmative action.
Perhaps it is inevitable in a hyperpartisan Washington that a moderating voice will be replaced, most likely, by one with a stronger ideological bent. For decades, the ideological complexion of the court has generally remained the same, with new members generally replacing someone of similar ideology. Trump said Wednesday that he would choose Kennedy’s replacement from a list that he assembled during his presidential campaign, a roster filled with conservative nominees.
Senate majority leader Mitch McConnell said the confirmation proceedings would occur in the fall, before the November congressional elections. That prompted Democrats to allege hypocrisy. McConnell blocked Barack Obama’s nominee to replace the late Antonin Scalia in 2016, Merrick Garland, saying that the Senate should not act in an election year. That cleared the way for confirmation of Trump’s first pick, Neil Gorsuch.
Now the Senate will be acting before the voters have spoken in 2018.
“It is imperative that the president’s nominee be considered fairly and not be subjected to personal attacks,” McConnell declared Wednesday.
Democrats can employ some delaying tactics, but are unlikely to run out the clock to November.
“The Senate should not consider any Supreme Court nominee until after the midterm elections,” said Senator Edward J. Markey, the Massachusetts Democrat. “We are now 132 days away from the 2018 election. When Republicans committed to stealing Merrick Garland’s Supreme Court seat, the election was 269 away.“
In addition to installing Gorsuch, Trump has set a record for appointing more federal appellate judges than any president in his first term. He has ample opportunity to continue shaping the courts. There are currently 149 federal judicial vacancies, with 88 nominees pending.
Of the five conservative justices, the oldest is Clarence Thomas at age 70. The liberals include Ginsburg, who is 85, and Stephen Breyer, who is about to turn 80.
“This is the most important Supreme Court vacancy for this country in at least a generation,” Senate minority leader Chuck Schumer said Wednesday. “Nothing less than the fate of our health care system, reproductive rights for women, and countless other protections for middle-class Americans are at stake.”
Abortion rights groups feel particularly under threat.
“Justice Kennedy’s retirement is devastating news at a divisive time in our nation and on the Supreme Court,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “President Trump has promised to nominate Supreme Court justices who will overturn Roe v. Wade. That promise should set off alarm bells for anyone who cares about women — and the Constitution.”
Not only was Kennedy a crucial vote reaffirming abortion rights protections in 1992, but two years ago he helped strike down a Texas law that would have closed three-fourths of the state’s abortion clinics.
“The stakes of the coming nomination fight are extraordinary,” Northup said. “The future of reproductive rights is on the line.”
While Trump has often ruled by chaos and confusion — and has several times been stymied by court decisions — he is also starting to reshape major parts of government and politics, with many in the Republican Party now bending to his will.
“I think he’s become an impact president. Not just executive and legislative branches, but this long-term impact on the judiciary,” Reed said, taking note of the potential for more nominations. “By the end of your first term you’ve put three or four conservatives on the Supreme Court. That’s the track he’s on right now. That’s strong. That’s historically strong.”
Matt Viser can be reached at firstname.lastname@example.org.