The uncertain political ramifications of Justice Kennedy’s exit

An already turbulent national political environment was rocked by another major development Wednesday afternoon: Justice Anthony Kennedy, the closest thing there is to a swing vote on the Supreme Court, decided to retire. President Donald Trump, who already got to appoint conservative Neil Gorsuch to the court after Senate Republicans decided not to consider then-President Barack Obama’s replacement for the deceased Antonin Scalia in early 2016, is now poised to pick a second justice, and one who likely will push the court further to the right. This comes on the heels of several key, 5-4 decisions released at the end of this year’s Supreme Court term that broke against the court’s liberal bloc.

From a jurisprudential standpoint, this is a nightmare for the left. Trump seems likely to pick a Gorsuch-style conservative for the seat, and Republicans have been building a judicial farm team for years after the disappointments they suffered in the Ronald Reagan and George H.W. Bush years, when GOP high court selections sometimes did not turn out to be as conservative as many on the right would have wished (Anthony Kennedy was one of those justices). Trump, a president obsessed with his base voters who delights in antagonizing Democrats, does not seem like someone who will opt for a more consensus choice.

Senate Majority Leader Mitch McConnell (R-KY), who sees pushing the judiciary to the right as a top priority while Trump is president and the GOP controls the Senate, is also a skillful tactician who likely will try to both get a new justice confirmed and also use the vacancy as a weapon against red state Senate Democrats, of whom there are quite a few on the ballot this November. Any Democrat who votes for this new nominee will anger a certain percentage of Democrats even in very red states. These Democratic voters may choose not to show up at the polls or may stop donating money to express their displeasure. Or, if the red state Democrats vote against Trump’s pick, they might energize more Republican presidential voters to turn out and support their GOP opponents. In McConnell’s calculation, heads they lose, tails they lose.

McConnell knows all this. He doesn’t care all that much how Democratic senators end up voting on the justice-nominee so long as he can keep his own caucus together. Assuming a vote before the midterm — McConnell said the Senate will vote on a replacement “this fall” — the majority leader will attempt to make each red state Democrat pay a dear price on Election Day whether they vote for or against the nominee. Meanwhile, Republican strength in the Senate is fragile: because of Sen. John McCain’s (R-AZ) absence due to poor health, the Senate is functionally just 50-49 Republican now. Will any GOP senators object to the nominee? It’s possible, albeit unlikely. (As usual, Republican Sens. Susan Collins of Maine, Bob Corker of Tennessee, Jeff Flake of Arizona, Lisa Murkowski of Alaska, and Rand Paul of Kentucky come to mind — though the blowback from a “no” vote would be severe from a huge majority of their own party’s people — who have been eagerly waiting for a Supreme Court takeover for years.) Even if Republicans lose the Senate, they hypothetically could still confirm a justice in the post-election lame duck session, although that may be a risky game that McConnell won’t want to play. On the other hand, McConnell has proved many times he’s perfectly willing to take the heat as long as he delivers dinner from the kitchen.

Political questions — unanswerable now — abound. When will the vote be scheduled: before or after the midterm? Probably before, but maybe not. If the new justice is confirmed before the midterm, will it only juice turnout on the left because the right will be satisfied and the left outraged? Already, rank-and-file Democrats are tweeting that the most important midterm in their lifetime has become leagues more significant with the Kennedy vacancy. Or does this court vacancy help Republicans make up what seems to clearly be an enthusiasm deficit compared to Democrats? This enthusiasm bump could be larger if the vote was near to Election Day, or afterwards. Then again, in this too-much-news era, almost everything fades from public memory after a week or two.

That the vacancy seems very likely to help Republicans cement a conservative majority on the Supreme Court for years — decades? — to come seems clear. The political consequences in the short term are more uncertain, and given that we’re all just beginning to digest the news, making sweeping pronouncements about how this will change the midterm calculus seems unwise.

There will, of course, be an argument as to whether the decision by McConnell and Senate Republicans to stonewall, for nine months, Obama’s choice of Merrick Garland in 2016 means that the Senate should wait six months, until 2019, to consider this new vacancy. Partisans will argue about the process and hypocrisy, as they must to keep the other side accountable, but ultimately, the judicial nomination game has become one of pure and raw politics. And as one of us has taught students for years, “Hypocrisy is the lifeblood of politics.”

Senate Republicans — who held the majority in 2016 and had no formal, legal obligation to confirm an Obama appointee or even hold hearings on him — played power politics on the last vacancy and won. They can and almost assuredly will do the same this time. When the tables are turned politically and there is a future Supreme Court vacancy, we should expect Democrats to do the same. And if a vacancy comes in a time of divided control of the presidency and the Senate, that vacancy may go unfilled for longer than Scalia’s seat did, perhaps even years.

There is no constitutional mandate to fill a court seat quickly, or at all. Also, as has happened several times in U.S. history, Congress and a president can change the number of seats on the Supreme Court. If there is a Democratic president and Congress in the 2020s, and the conservatives still rule the roost on the court, don’t be surprised if there is an effort to expand the court’s size. President Franklin D. Roosevelt tried and failed to do this in 1937, but a future attempt may have a different fate. We’ve all learned in the previous few years that political rules are made to be broken.

The modern procedural arms race over judicial nomination norms, which one can trace all the way back to the Senate Democrats’ successful defeat of Robert Bork in 1987 (Kennedy ultimately got that seat), shows no signs of abating. This will be another vicious fight at a time when the nation is deeply divided and partisanly polarized. It’s not going to be pretty or fun.