Supreme Court Justice Anthony Kennedy’s retirement has already triggered an intense Senate fight over the confirmation of his successor.
Moments after Kennedy said he would retire, Majority Leader Mitch McConnell (R-Ky.) said the Senate would act before the midterm elections to confirm a new pick nominated by President Trump.
“We will vote to confirm Justice Kennedy’s successor this fall,” McConnell said on the Senate floor.
{mosads}Democrats immediately cried foul, arguing the nomination fight should come after the midterms.
“Wait, so the thing about ‘the American people should have a voice in the selection of their next Supreme Court Justice’ wasn’t really about a concern for the American people?” tweeted Sen. Chris Murphy (D-Conn.). “It was just about Obama?? I am shocked! SHOCKED!!”
Murphy’s remarks referenced the Senate GOP’s decision to block Merrick Garland, former President Obama’s pick to replace Justice Antonin Scalia after his death in 2016. McConnell and other Senate Republicans argued at the time that the pick was too important and that it should wait until after the presidential election.
Democrats remain bitter over that fight, and they sought to block Neil Gorsuch’s nomination to the court last year. Senate Republicans got rid of the filibuster on Supreme Court nominations in response and confirmed Gorsuch in April 2017.
McConnell called on Democrats to give Trump’s next pick fair consideration.
“It’s imperative that the president’s nominee be considered fairly and not subjected to personal attacks,” he said.
A vote before the midterm elections could be difficult for a number of Democratic senators facing reelection in states won by Trump, including Sens. Joe Manchin (W.Va.), Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.).
Republicans hold just 51 seats and usually have just 50 in the chamber due to Sen. John McCain’s (R-Ariz.) ongoing treatment for brain cancer.
That means they can likely only afford one defection on a Trump pick — unless they can convince some Democratic senators to back Trump’s nominee.
Abortion is likely to be a flashpoint in the debate as Kennedy had been the fifth vote for upholding Roe v. Wade, the landmark case that established a right to abortion in 1973.
Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) are two pro-abortion rights Republicans who are likely to exert significant influence on the debate.
They voted last year against legislation to repeal and replace ObamaCare in part because it would have defunded Planned Parenthood.
Some GOP lawmakers say they want a conservative justice and have praised the possible candidates Trump listed during his 2016 presidential campaign as acceptable.
“The president has a lot of good choices. I hope they can give us a good, highly qualified nominee quickly. Then we’ll get on with it,” said Sen. Lindsey Graham (R-S.C.), a member of the Senate Judiciary Committee.
Graham, the sponsor of a bill to restrict abortion after 20 weeks, downplayed the likely impact on Roe v. Wade.
“Roe v. Wade has been affirmed many times in different ways,” he said. “There’s no litmus test.”
Republicans say they want to get started on the confirmation process as soon as possible.
“Aug. 1 we need to have someone ready,” said Sen. John Kennedy (R-La.), another member of the Judiciary Committee.
“I want a good lawyer who is whip smart, who is not a hater, who calls the balls and the strikes, who understands the way Madison meant the separation of powers to work, and who will listen to all points of view,” Kennedy added.
“I want somebody who’s going to call it like he or she sees it and follow the law. I don’t want somebody who’s going to rewrite a statute or a Constitution every Thursday.”