Replacing Kennedy will also play a role in the U.S. Senate races, especially in states that voted for President Trump. Seven Democratic senators will need to weigh a potential vote to block any Trump nominee with how that will affect their campaigns to be re-elected.
Justice Anthony Kennedy’s announcement Wednesday of his retirement comes with the ink barely dry on several crucial decisions enabled by President Trump’s choice of the conservative Neil Gorsuch for the U.S. Supreme Court.
The partisan bombast over who’ll replace Kennedy promises to be the biggest political fight thus far of the already turbulent Trump presidency. Kennedy has been a center-right jurist with enough left-of-center positions to qualify as the court’s unpredictable swing voter. Expect Trump to nominate a new justice who wouldn’t often swing.
Millions of Americans, particularly conservatives, factor this power to nominate justices into their choice of presidential candidates. As newly inaugurated President Barack Obama said in January 2009, “Elections have consequences, and at the end of the day, I won.” So, in 2016, did Trump. Rerun here the debate about whether Senate Republicans unfairly kept Obama from replacing the late Justice Antonin Scalia in 2016, or whether Republicans merely were following the dictates of Democratic Sens. Joe Biden (in 1992) and Chuck Schumer (in 2007) that the Senate shouldn’t confirm a nominee in the final year of a presidency.
But there’s no doubt that Trump, in the second year of his presidency, can nominate another justice. Kennedy generally supported gay rights (including same-sex marriage) and abortion rights. Yet he also wrote the 2010 Citizens United opinion establishing that corporations, unions and other associations can make expenditures to influence elections. And in decisions announced this week, Kennedy voted with the majority to uphold the third iteration of Trump’s so-called travel ban and to free public workers from paying mandatory fees to labor unions.
We won’t speculate on how conservative a conservative Trump will nominate.
Instead we’ll think back fondly to the days — not that long ago — when filling these vacancies didn’t routinely devolve into all-out tribal warfare. Recall that the court’s four liberal justices were confirmed by Senate votes of 87-9 (Stephen Breyer), 96-3 (Ruth Bader Ginsburg), 63-37 (Elena Kagan) and 68-31 (Sonia Sotomayor).
Social media outbursts after Kennedy’s announcement Wednesday suggested that this fight will be every bit as brutal as was the confirmation of Gorsuch last year by a vote of 54-45.
Trump’s ability to nominate Kennedy’s successor infuriates liberals already upset by the court’s latest rulings — and animates conservatives who’ll demand another justice in the Gorsuch mold.
But neither group of noisy partisans qualifies as the Americans who most dread the approaching battle. That sorry distinction goes to Indiana’s Joe Donnelly and four other Democratic senators running for re-election in red states Trump carried in 2016. Three of them — Donnelly, Joe Manchin (W.Va.) and Heidi Heitkamp (N.D.) — voted to confirm Gorsuch; Claire McCaskill (Mo.) and Jon Tester (Mont.) voted nay.
And none of them now wants to vote on another Trump nominee to the Supreme Court.
— CHICAGO TRIBUNE