Political War Over Replacing Justice Kennedy on Supreme Court Underway

By MICHAEL D. SHEAR and THOMAS KAPLAN

1 hr ago

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© Erin Schaff for The New York Times The Supreme Court building in Washington. A battle for the future of the court is underway in the wake of Justice Anthony M. Kennedy’s announcement Wednesday that he will retire.

WASHINGTON — A political war over replac ing Justice Anthony M. Kennedy roared to life in Washington Thursday morning, just hours after the Supreme Court announced a retirement that could reshape the country’s judicial future.

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 vowed 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. Senator Mitch McConnell of Kentucky, the Republican leader, has vowed to move swiftly once Mr. Trump announces his choice.

But the potentially monumental impact of Justice Kennedy’s departure appears to have lit a fire under Democratic lawmakers and liberal activists, who vowed Thursday morning to mount a vigorous fight in the hopes of preserving decades of liberal court precedents on abortion, civil rights, gay rights, affirmative action and the death penalty. Conservative organizations were mobilizing to support a quick confirmation of a justice who would be expected to vote against the court’s liberal precedents.

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.

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.

Liberal activists and Democratic lawmakers have demanded that a replacement for Justice Kennedy not be confirmed until after the midterm elections in the fall, arguing that voters should be given the opportunity to select the members of Congress they want to vote on the vital selection.

They have been quick to point out that Republicans, led by Mr. McConnell, used exactly that argument in 2016, ahead of the presidential election, as they blocked even a hearing for Judge Merrick B. Garland, the choice of former President Barack Obama to replace the late Justice Antonin Scalia.

Mr. McConnell defended his decision to move forward with filling the vacancy this year, in contrast to his handling of the nomination of Judge Garland.

“This is not 2016,” Mr. McConnell said Thursday 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, 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.”

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.”

That is unlikely to happen, given that Mr. Trump and his allies in Congress want to make sure to act on the court vacancy before the fall elections, during which they could lose control of the Senate to Democrats.

Conservative organizations are gearing up as well to provide political support to Republican lawmakers for a speedy confirmation and to demand the appointment of a conservative jurist.

“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, predicted on Twitter a historic clash of ideologies as Washington battles for control of the court.

“Democrats, of course, will return to their playbook of character assassination, distortions of judges’ records, and outright lies and deception,” she predicted in a series of tweets. “These attacks by liberal billionaires and special interest groups are bound to fail because the American people doesn’t want the leftist agenda they are trying to impose.”

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