Washington Prepares for Battle Over Next Supreme Court Justice: 'Republicans Will Have the Votes'

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President Donald Trump and Supreme Court Justice Anthony Kennedy, who has announced his retirement, during a public swearing-in ceremony in Washington, April 10, 2017
President Donald Trump and Supreme Court Justice Anthony Kennedy, who has announced his retirement, during a public swearing-in ceremony in Washington, April 10, 2017Credit: Carolyn Kaster/AP

WASHINGTON - U.S. President Donald Trump officially began his efforts to appoint a new Supreme Court justice in place of the retiring Justice Anthony Kennedy by inviting a bi-partisan group of senators on Thursday to discuss the issue at the White House. Within the group were a number of Democrats from states that Trump won decisively in the 2016 election, and who are currently up for re-election; and a small group of Republican moderates who might have reservations if Trump tries to appoint a very conservative judge. The conversation took place with the November midterm elections in mind, as both sides prepare for a political battle that could make a fundamental impact on the results of the elections.

Trump will need the support of at least 50 senators in order to get his nominee confirmed. The chances that he will succeed in reaching that number seem high, according to two Senate aides who spoke with Haaretz on Friday. A Democratic aide said that while the party will put up a fight and try to find vulnerabilities in Trump’s proposed nominee, “at the end of the day, the Republicans will have the vote to take care of this.” A Republican aide agreed, stating that “there will be a battle, but the result seems to be known in advance.”

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Analysts who spoke with Haaretz offered a similar view of the situation. “There are certain issues that cause divisions within the Republican party, such as immigration and tariffs, but if there is one thing that truly unites Republicans and has the support of almost everyone in the party, it’s judicial appointments,” says Josh Kraushaar, politics editor at the National Journal.

Barbara Perry, an expert on the history of the Supreme Court, also told Haaretz that it would take “an unusual development” for Trump to fail in appointing Kennedy’s replacement. Perry, a scholar at the Miller Center of Public Affairs at the University of Virginia, cautioned that one issue which could become an Achilles' heel for the nominee is abortion.

Kennedy served as a line of defense against attempts to overturn Roe v. Wade, the landmark decision issued in 1973 which made abortion legal throughout the United States. A new conservative justice could potentially create a 5-4 majority in favor of overturning or gutting that decision, and Perry says this could make the Senate confirmation process more difficult for any nominee.

“A majority of Americans are against overturning that decision,” she says. “There is a very heated discussion on abortion in this country, between feminists and women’s rights activists and the Christian right, but I think the average, moderate American views this from a different perspective. For many Americans, abortion isn’t a good thing, but it should remain an option, something that should be available to people who are facing a difficult situation. How will people react to the possibility of this option being taken away in many states? This question will hang over the confirmation process.”

Kennedy was considered the Supreme Court’s “swing vote” for the past two decades. Despite being nominated by a Republican president – Ronald Reagan, in 1987–  and mostly siding with the four conservative justices on the court, from time to time he chose to side with the four liberal justices, thus becoming the deciding voice in critical cases, including the United States v. Windsor, the landmark decision in 2013 that ruled married gay and lesbian couples are entitled to federal benefits.

When Kennedy retires, he will need a “large shipping box,” says Perry, adding “because he will be taking the ‘swing seat’ of the court with him.” “This seat, this role of being the moderate who occasionally switches sides, is probably going to leave the court together with Kennedy. It’s hard to see Trump nominating someone who will take on that role.”

Trump promised during the 2016 election that the justices he will appoint to the Supreme Court will be chosen from a list of approximately 20 judges, prepared by two right-wing think tanks in Washington. The judges on that list, says Perry, are all ideological conservatives who will be very unlikely candidates for breaking from the conservative majority on specific cases.

“This was an important factor in Trump’s election victory,” says Perry. “There were many Republicans who had reservations about him, but decided to vote for him because they wanted a Republican president to shape the future of the Supreme Court. There were people who said – I don’t like Trump, he says embarrassing things but we need to think of the Supreme Court. He knows how important these voters were to his victory, and he will appoint justices that advance their world view.”

As legislators from both parties in Congress are preparing for the confirmation process, they are also thinking how to make the Supreme Court issue part of their political strategies ahead of the midterm elections. Kraushaar says that Democrats will probably try to use the new circumstances to create a sense of urgency among their voters, but he notes that “Democrats are already very energized around this election, as was evident in many of the special elections we saw over the past year.”

For Republicans, he says, the battle for the Supreme Court could help clearly define their campaign, and energize their “base” of support. “This development is obviously going to change the issues that will be discussed on the campaign trail across the country. Democrats wanted to focus the election on health care, or on immigration policy and the separation of families at the border. Among Republicans, many felt like they didn’t really have an issue to run on – but now they do.”

Perry says that Democrats should highlight to their voters the consequences not just of this upcoming Supreme Court appointment, but also of others that could be made within the next few years. “They can discuss the danger to many issues that are important to Democrats and also to some Independents, such as women’s right, gay rights and more. It could be the kind of thing that will energize the base of the Democratic party. If this doesn't, what will?”

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