The decision of Supreme Court Justice Anthony Kennedy to retire this past Wednesday may have come as a surprise to many observers, but it wasn’t any shock to close followers of the court, as there’d been rumors swirling for years that he was considering it.
What was a bit of a surprise was the timing: Right at the end of the term, but long enough before the election that his replacement could be confirmed by the Republican Senate. Since he’s often the swing vote on the Supreme Court, there were many who hoped he’d wait to see if Democrats took control of the Senate before retiring, just as many hoped Ruth Bader Ginsberg would retire while Obama was still president.
Now, though, his decision to step down on the cusp of the midterm elections puts both parties in a bind. Republicans are in the awkward position of having to rush a nominee through the process before the election just two years after they forced the delay of a different nomination until after the election.
It will be easy to portray that as hypocritical, even if there is an argument to be made that the circumstances are different since this isn’t a presidential election year. It is worth noting that this label can’t be applied to Maine’s Susan Collins, though: She strongly supported holding hearings on Merrick Garland’s nomination, but wasn’t able to overcome her colleagues’ intransigence on the matter.
On the Democrats’ side, they now are in the position of making the argument once made by the Republican Party: that any consideration of a replacement for Kennedy shouldn’t begin until after the midterms. Though that may be a good tactical move, it could also imperil some of their incumbents running for re-election in states Trump carried. If red-state Democrats end up committing to vote for Trump’s nominee in order to win re-election, then Democrats will have nothing to gain by delaying the vote. At best, they can perhaps force Trump to choose a slightly more moderate nominee, but whomever he chooses, they’ll probably be more conservative than Kennedy.
It was wrong for Republicans to sit on Garland’s nomination, but it ended up working: They got a much more conservative justice confirmed. If Democrats try to use the same strategy, it’s a risky one, just as it was for Republicans two years ago. They could galvanize their base and reap enormous gains in the elections, or it could cost them seats and have little, if any, effect on who is eventually confirmed.
Mainers may be wondering how our United States senators will vote in the next confirmation battle.
It’s a short history, but given that Angus King voted against seating Neil Gorsuch – a more than qualified conservative replacing another conservative – he’s probably going to vote against any Trump nominee. The question in King’s case isn’t how he’s going to vote, but rather what justification he’ll use for his opposition. In an election year, it’s highly unlikely that he’s going to suddenly decide to vote for Trump’s Supreme Court pick when he’s already being criticized from the left for not resisting Trump enough.
For Susan Collins, it may be a more difficult question. She’s been in office long enough to have voted on the nominations of five of the current members of the Supreme Court, and she’s voted for all of them. Her main criterion hasn’t been politics, but qualifications, which is why she’s voted to confirm both liberal and conservative justices over the years. This is why, even though she wasn’t happy with how the Garland nomination was handled, she wisely voted to confirm Neil Gorsuch.
That situation was different, as a conservative was replacing a fellow conservative on the bench.
Now, Republicans have the opportunity to replace a swing vote on the court with a loyal conservative. That could have a much more dramatic impact on the direction of the Supreme Court, and thus of the country, for decades to come.
If Trump wants to keep the Republican Senate caucus together (and perhaps gain Democratic votes), he’d be wise to pick a qualified, pragmatic conservative jurist who won’t completely alienate moderates in either party.
That may disappoint activists, but it would still succeed in driving the court farther to the right without risking losing a confirmation fight. With the elections coming up and the Senate closely divided, Republicans can only hope that Trump will pick a competent nominee who will win support from conservatives and moderates alike.
Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at:
Twitter: jimfossel
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