Washington
Trump said on Wednesday afternoon that the effort to replace Kennedy, a perennial swing vote on the court who announced his retirement earlier in the day, will start “immediately,” and Senate Republicans said they plan to hold a confirmation vote in the fall.
Trump praised Kennedy as having been a “great justice” and added, “Hopefully we will pick someone who is just as outstanding.” The president said he would select a nominee from a list he released during the campaign to assuage the concerns of conservatives skeptical over whom he would pick for the court.
“They will come from that list of 25 people,” Trump said.
The vacancy promises to play a prominent role in the midterm elections, with leaders in both parties seeking to energize their voters by promoting the nomination fight as one with dramatic consequences for the country. Even if Kennedy’s replacement is confirmed before voters head to the polls in November, strategists in both parties said the intense focus on the court pick will be a galvanizing issue.
“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,” Senate Minority Leader Chuck Schumer, D-N.Y., said in a floor speech, calling the Kennedy vacancy the “most important … in at least a generation.”
Republicans are pitching the opening as an opportunity to lock in a reliably conservative majority after years of decisions that hung on which way Kennedy would vote. “For anybody who is right of center, this entire week has been five straight Super Bowls,” Josh Holmes, a longtime McConnell adviser, said of the court opening and rulings on issues such as the president’s entry ban, unions and abortion.
Despite the intensity of the expected political debate over the nominee, Democrats have little recourse when it comes to blocking consideration of Trump’s nominee. Senate Republicans voted last year to eliminate the 60-vote requirement for Supreme Court nominees, meaning the GOP will not need Democratic votes to confirm Kennedy’s successor unless some Republicans defect.
But moderate Republicans have been reliable votes for Trump on judicial nominees, many of whom have resumes or stated views that are similar to the candidates’ on Trump’s list of potential Supreme Court justices.
Three of the Democrats up for re-election in states Trump won in 2016 — Heidi Heitkamp, N.D.; Joe Manchin, W.Va.; and Joe Donnelly, Ind. — voted last year for his first Supreme Court nominee, Neil Gorsuch. On Wednesday, none of them gave any indication of being interested in a fight over Kennedy’s replacement, even as other Democratic senators and party activists ratcheted up pressure to oppose the pick.
“Part of my job as a United States senator is to carefully consider the president’s judicial nominees, including for the Supreme Court, and I will thoroughly review the record and qualifications of any nominee presented to the Senate,” Donnelly said in a statement.
Kennedy, a fixture of the court for three decades, has for years been its most critical swing vote on landmark decisions involving campaign finance, same-sex marriage and the continued viability of affirmative action. Rarely did either the liberal-leaning justices or the conservative appointees prevail on major court cases without having Kennedy, 81, on their side.
Among the people considered to be on Trump’s shortlist, according to current and former West Wing aides, are: Brett Kavanaugh of the Court of Appeals for the D.C. Circuit, Thomas Hardiman of the 3rd Circuit, Raymond Kethledge and Amul Thapar of the 6th Circuit, and Amy Coney Barrett of the 7th Circuit.
Hardiman was a finalist to fill the most recent Supreme Court vacancy, which ultimately went to Gorsuch, who was confirmed in April 2017. Thapar, who was the first judge confirmed to the appellate courts during Trump’s presidency, has been pitched by Senate Majority Leader Mitch McConnell, R-Ky., to the White House as a potential Supreme Court candidate, according to a person familiar with the discussions.
Senate Republicans are eager to have Kennedy’s successor confirmed before November’s midterms, when the party is at risk of losing its already razor-thin 51 to 49 majority.
“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” McConnell said on Wednesday afternoon. “We will vote to confirm Justice Kennedy’s successor this fall.”
McConnell’s push to move quickly angered Democrats who remain furious with the Republican leader for refusing in 2016 to consider President Barack Obama’s nominee, Merrick Garland, to replace Justice Antonin Scalia, who died in February of that year. At the time, McConnell said the issue should be left to voters in the 2016 election. Democrats said the same standard should apply now.
“Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they should deserve to be heard then,” Schumer said. “Anything but that would be the absolute height of hypocrisy.”
Senate Republicans dismissed Democrats’ complaints, arguing that the precedent McConnell established in 2016 applied only during presidential election years and noted that Justice Elena Kagan was confirmed in 2010, a midterm-election year.
“(We’ve) got plenty of precedent when to have appointments to the Supreme Court and when not to,” said Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, who will oversee the confirmation hearings.