President Trump and Senate Republicans plan to move quickly to install a new Supreme Court justice to replace Anthony M. Kennedy — launching an election-year fight over a decision that is likely to reshape the court for a generation.
Trump said Wednesday afternoon that the effort to replace Kennedy, a perennial swing vote on the court who announced his retirement earlier in the day, will start “immediately,” and Senate Republicans said they plan to hold a confirmation vote in the fall.
Trump praised Kennedy as having been a “great justice” and added, “Hopefully we will pick someone who is just as outstanding.” The president said he would select a nominee from a list he released during the campaign to assuage the concerns of conservatives skeptical over whom he would pick for the court.
“We have to pick a great one. We have to pick one that’s going to be there for 40 years, 45 years,” Trump said at a campaign rally Wednesday night in Fargo, N.D. “We need intellect. We need so many things.”
The vacancy promises to play a prominent role in the midterm elections, with leaders in both parties seeking to energize their voters by promoting the nomination fight as one with dramatic consequences for the country. Even if Kennedy’s replacement is confirmed before voters head to the polls in November, strategists in both parties said the intense focus on the court pick will be a galvanizing issue.
“Nothing less than the fate of our health-care system, reproductive rights for women and countless other protections for middle-class Americans are at stake,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said in a floor speech, calling the Kennedy vacancy the “most important . . . in at least a generation.”
Republicans are pitching the opening as an opportunity to lock in a reliably conservative majority after years of decisions that hung on which way Kennedy would vote. Referring to the court opening and rulings on issues such as the president’s entry ban, unions and abortion, Josh Holmes, a longtime adviser to Senate Majority Leader Mitch McConnell (R-Ky.), said, “For anybody who is right of center, this entire week has been five straight Super Bowls.”
Despite the intensity of the expected political debate over the nominee, Democrats have little recourse when it comes to blocking consideration of Trump’s nominee. Senate Republicans voted last year to eliminate the 60-vote requirement for Supreme Court nominees, meaning the GOP will not need Democratic votes to confirm Kennedy’s successor unless some Republicans defect.
But moderate Republicans have been reliable votes for Trump on judicial nominees, many of whom have résumés or stated views that are similar to the candidates’ on Trump’s list of potential Supreme Court justices.
Three of the Democrats up for reelection in states Trump won in 2016 — Heidi Heitkamp (N.D.), Joe Manchin III (W.Va.) and Joe Donnelly (Ind.) — voted last year for his first Supreme Court nominee, Neil M. Gorsuch. On Wednesday, none of them gave any indication of being interested in a fight over Kennedy’s replacement, even as other Democratic senators and party activists ratcheted up pressure to oppose the pick.
“Part of my job as a United States Senator is to carefully consider the president’s judicial nominees, including for the Supreme Court, and I will thoroughly review the record and qualifications of any nominee presented to the Senate,” Donnelly said in a statement.
Kennedy, a fixture of the court for three decades, has for years been its most critical swing vote on landmark decisions involving campaign finance, same-sex marriage and the continued viability of affirmative action. Rarely did either the liberal-leaning justices or the conservative appointees prevail on major court cases without having Kennedy, 81, on their side.
Among the people considered to be on Trump’s shortlist, according to current and former West Wing aides, are: Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, Thomas Hardiman of the U.S. Court of Appeals for the 3rd Circuit, Raymond Kethledge and Amul Thapar of the U.S. Court of Appeals for the 6th Circuit, and Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit.
Hardiman was a finalist to fill the most recent Supreme Court vacancy, which ultimately went to Gorsuch, who was confirmed in April 2017. Thapar, who was the first judge confirmed to the appellate courts during Trump’s presidency, has been pitched by McConnell to the White House as a potential Supreme Court candidate, according to a person familiar with the discussions.
Senate Republicans are eager to have Kennedy’s successor confirmed before November’s midterms, when the party is at risk of losing its razor-thin 51-to-49 majority.
“The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy,” McConnell said Wednesday afternoon. “We will vote to confirm Justice Kennedy’s successor this fall.”
McConnell’s push to move quickly angered Democrats who remain furious with the Republican leader for refusing in 2016 to consider President Barack Obama’s nominee, Merrick Garland, to replace Justice Antonin Scalia, who died in February of that year. At the time, McConnell said the issue should be left to voters in the 2016 election. Democrats said the same standard should apply now.
“Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they should deserve to be heard then,” Schumer said. “Anything but that would be the absolute height of hypocrisy.”
Senate Republicans dismissed Democrats’ complaints, arguing that the precedent McConnell established in 2016 applied only during presidential election years and noted that Justice Elena Kagan was confirmed in 2010, a midterm-election year.
“We got plenty of precedent when to have appointments to the Supreme Court and when not to,” said Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa), who will oversee the confirmation hearings. Grassley declined to lay out a timeline for considering Kennedy’s replacement, although Gorsuch was nominated and confirmed in just over two months.
Despite some clashes with Trump over policy or his brash style, Senate Republicans and the president have largely been in agreement on remaking the judiciary. Aside from Gorsuch, the Senate has confirmed 21 judges to the appellate courts and 20 to the district courts since Trump took office.
Republicans had been keeping a close eye on Kennedy, anxious over whether he would retire after this year’s term, which concluded Wednesday. Trump had been telling advisers since December that Kennedy was going to retire but that the justice wanted some input into who would replace him, two advisers said.
The president also told one of these people that the court would be one of his enduring legacies but was disappointed it was not getting more attention. “He said, ‘It’s below the radar,’ ” this person said.
People close to the administration said the White House was prepared for the vacancy and ready to nominate someone from the list released by Trump.
Leonard Leo, the influential executive vice president of the Federalist Society and an informal adviser to the White House on judicial nominations, noted that White House counsel Donald McGahn had vetted many of the names during the presidential campaign.
“You could throw a dart at the list and you would have a good pick,” said Leo, who also said he had yet to speak with Trump about the vacancy but expected to soon. He said he expects to see a nominee within a few weeks, adding that a nominee usually needs 70 to 100 days to be confirmed.
Leo was on Capitol Hill on Wednesday before Kennedy’s announcement, at the invitation of Sen. Mike Lee (R-Utah), to brief Senate Republicans on key rulings the court issued this term — although he said he did not get a single question on a potential vacancy.
GOP senators leaving that closed-door lunch were stunned but clearly delighted to hear the news of Kennedy’s retirement — a move that not only could leave a more conservative imprint on the court for decades, but also energize Republican voters.
“Am I maintaining my composure?” Senate Majority Whip John Cornyn (R-Tex.) said, smiling, when told of the news by reporters. “Wow.”
A Trump adviser said the president has often mused about getting to name three or four Supreme Court justices during his tenure and talks about potential picks frequently because he knows conservatives care about the issue. Trump also says he wants young judges. Gorsuch, at 50, is the youngest member of the court.
“He understands this is at the center of what his legacy will be,” Leo said.
Trump told reporters that he met privately with Kennedy earlier Wednesday for about half an hour. He said he pressed the retiring justice on whether he had any recommendations for his successor, but Trump did not answer when asked whom Kennedy suggested.
The sole non-judge on Trump’s shortlist — Lee — said “ he would not say no” if the White House approached him about replacing Kennedy.
“I’m a lifelong watcher of the Supreme Court. I started watching Supreme Court arguments for fun when I was 10 years old,” Lee said. “So if somebody asked me if I would consider that, I would not say no. But the president’s got a decision to make, and I trust his ability to make it and make it well.”
GOP senators declined to say whom they think Trump should nominate. But Republicans were all eager to get Kennedy’s successor confirmed soon.
“I’m ready to saddle up and ride. As soon as the president gets us somebody, let’s go. I’ll stay here over the Fourth of July,” said Sen. John Neely Kennedy (R-La.). Reminded that he has a congressional trip to Russia scheduled next week, Kennedy responded: “I’ll come back from Russia. Can you commute? How far is it?”