Political War Over Replacing Kennedy on Supreme Court Is Underway - New York Times

Political War Over Replacing Kennedy on Supreme Court Is Underway

The Supreme Court building in Washington. A battle for the future of the court is underway after Justice Anthony M. Kennedy’s announcement on Wednesday that he will retire.CreditErin Schaff for The New York Times
By Michael D. Shear and Thomas Kaplan
June 28, 2018

WASHINGTON — A political war over replacing  Justice Anthony M. Kennedy roared to life on Thursday in Washington, the start of an election-season clash over a Supreme Court retirement that will reshape the country’s judicial future.

Hours after Justice Kennedy’s announcement on Wednesday that he will step down July 31, conservative organizations were mobilizing to support the Republican-controlled Senate in a quick confirmation of a justice who would be expected to vote against the court’s liberal precedents. One group, the Judicial Crisis Network, has already started a $1 million ad campaign urging people to support the president’s choice.

Democrats and liberal advocacy organizations face enormous challenges if they hope to prevent President Trump and the Republicans from installing a conservative justice who would shift the ideological balance of the court for  generations. Mr. Trump has promised to pick from a list of highly conservative jurists, and Republicans control the Senate, which can confirm the president’s choice by a simple majority.

Mr. Trump began wooing senators late Thursday night, meeting at the White House separately with three Republicans and with the three Democrats — Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin III of West Virginia — who broke party ranks last year and voted to confirm Judge Neil M. Gorsuch, the president’s first Supreme Court pick.

After the meeting, Ms. Heitkamp said in a statement that she urged the president to appoint someone who is “pragmatic, fair, compassionate, committed to justice, and above politics.”

But the effect of Justice Kennedy’s departure has already ignited opposition from many Democratic lawmakers, party strategists and liberal activists, who vowed a fierce battle to try to preserve decades of liberal court precedents on abortion, civil rights, gay rights, affirmative action and the death penalty.

“I think it has sunk in very quickly that this is the biggest fight of them all,” said Brian Fallon, a veteran Democratic operative whose organization, Demand Justice, is leading the charge against Mr. Trump’s pick. “If we don’t succeed in this fight, Trumpism will be here for 40 years, not just four years.”

Democratic strategists say the party needs to model its resistance to the successful fight Democratic senators waged in 1987 against Judge Robert H. Bork, President Ronald Reagan’s pick for the Supreme Court. After they defeated Judge Bork, Mr. Reagan eventually settled on Justice Kennedy, who was seen as a more moderate choice.

If they can mobilize Democrats and liberals, lawmakers say they hope to demand a more moderate justice from the current president, as well.

“There are people who have had to withdraw over the years because you get information out and you question them and the public is focused on it and galvanized by it,” said Senator Amy Klobuchar, Democrat of Minnesota and a member of the Judiciary Committee.

Demand Justice has begun running online ads against three of Mr. Trump’s possible picks and expects to spend more than $1 million on television ads once the president selects a nominee.

One ad targets Judge Amy Coney Barrett, who is on the president’s list of possible justices, for saying that the Affordable Care Act should have been held unconstitutional. Another ad is aimed at Judge Brett Kavanaugh, another possible pick, for saying that a president should be able to “decide whether and when he can be investigated.”

Democrats say they will focus on two main issues, abortion and health care. Mr. Fallon, who worked for President Barack Obama and was a top spokesman for Hillary Clinton’s 2016 presidential campaign, said the challenge will be convincing people that a Trump justice poses a threat to both issues.

“We have to do the work and spend the money to communicate the consequences of what a 5-4 court with a newly installed justice looks like,” Mr. Fallon said.

Democratic lawmakers gathered on the steps of the Supreme Court Thursday morning, flanked by members of progressive groups, to declare their opposition to all of the potential candidates on Mr. Trump’s public list of 25 possible jurists.

Video
Senators Susan Collins and Lisa Murkowski, both moderate Republicans who favor abortion rights, are facing pressure from liberal activists to defend Roe v. Wade in the impending confirmation battle over President Trump’s Supreme Court nominee.Published OnJune 28, 2018CreditImage by Tom Brenner/The New York Times

At the Capitol, Representative Nancy Pelosi of California, the House Democratic leader, warned of the high stakes in filling the vacancy.

“Make no mistake: Republicans now have the opportunity to erase a generation of progress for women’s rights, L.G.B.T.Q. rights, civil rights, workers’ rights and health care,” Ms. Pelosi declared.

Strategists say Democrats must demand that Mr. Trump’s pick for the court affirmatively say whether he or she would uphold Roe v. Wade, the landmark case establishing a right to abortion. Saying that it is “settled law,” as some conservatives concede, is not enough, the strategists say.

Senator Mitch McConnell, Republican of Kentucky and the majority leader, has vowed to move swiftly once Mr. Trump announces his choice, but Democratic lawmakers are demanding that a replacement for Justice Kennedy not be confirmed until after the midterm elections in the fall. They argue that voters should be given the opportunity to select the members of Congress they want to vote on the vital selection.

Democrats have angrily pointed out that Republicans, led by Mr. McConnell, used exactly that argument in 2016, before the presidential election, as they blocked Judge Merrick B. Garland, President Barack Obama’s pick to fill the seat left vacant after the death of Justice Antonin Scalia.


With Kennedy’s Retirement, the Supreme Court Loses Its Center
The swing vote in many decisions, Justice Anthony M. Kennedy shifted toward more conservative opinions in the final months of his 30-year justice tenure.

June 27, 2018
On Thursday Mr. McConnell defended his decision to move forward with filling the vacancy this year.

“This is not 2016,” he said on the Senate floor. “There aren’t the final months of a second-term constitutionally lame-duck presidency with a presidential election fast approaching. We’re right in the middle of this president’s very first term.”

Mr. McConnell pointed to the Supreme Court confirmations of Justices Elena Kagan in 2010, Stephen G. Breyer in 1994 and David H. Souter in 1990 — all midterm election years in a president’s first term.

“To my knowledge, nobody on either side has ever suggested before yesterday that the Senate should only process Supreme Court nominations in odd-numbered years,” Mr. McConnell said.

Chad Griffin, the president of the Human Rights Campaign, said that “the 2018 midterm elections just became the most consequential election of our lifetime.”

“We must keep organizing, mobilizing and holding lawmakers to account every single day — and then we need turn out like never before this November,” he said.


Conservatives in Charge, the Supreme Court Moved Right
Justice Anthony M. Kennedy’s last Supreme Court term contained hints of his retirement and foreshadowed a lasting rightward shift.

June 28, 2018
Senator Tim Kaine, Democrat of Virginia, echoed that message in an email to his supporters seeking signatures on a petition.

“We should not vote on a new Supreme Court Justice before the American people vote in November,” Mr. Kaine wrote. “Sign my petition if you agree: No Supreme Court vote until the American people vote.”

There is little chance of that happening, given that Mr. Trump and his allies in Congress want to make sure to act on the court vacancy before the fall elections, when Democrats could regain control of the Senate.

To that end, conservative organizations are planning campaigns to support a speedy confirmation.

“Concerned Women for America is gearing up for our biggest and perhaps most important confirmation battle in our almost 40-year history,” said Penny Nance, the group’s president. “We plan to devote considerable resources to this effort, and we expect to win. Our happy warrior/activist ladies relish the fight and shine in these historic moments.”

Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network, said her organization is already running ads targeting Democratic senators in states where Mr. Trump won during the presidential election.

One ad says: “Like they did before, extremists will lie and attack the nominee. But don’t be fooled. President Trump’s list includes the best of the best.”

Ms. Severino said that she expects liberals to aggressively criticize the president’s pick for the court, no matter who that person is.

“It’s the war on women. Or this person hates the little guy,” she said. “Without even knowing the nominee, we know the directions they will go. Some of these scaremongering tactics have been used since Reagan’s appointees. We are expecting that and we are absolutely prepared.”

Carl Hulse and Sheryl Gay Stolberg contributed reporting.