By Jonathan Lemire / Associated Press
NEW YORK — Three years of political upheaval. Early morning Twitter blasts. Scores of startling headlines. For the Republican Party, all the chaos of the Trump era has been building toward a week like this.
The party’s long-term strategy to focus on the Supreme Court — highlighted by an audacious decision not to allow a vote in 2016 on President Barack Obama’s judicial pick — culminated this week with a series of conservative rulings and another vacancy. With Justice Anthony Kennedy set to retire at the end of next month, President Donald Trump is poised to appoint his second justice in as many years, giving conservatives a potential bulwark on the bench that could offset national demographic trends that appear set to favor Democrats in the decades ahead.
Though Trump, who has little fixed ideology, has been an unpredictable and at times frustrating governing partner for the Republican leadership, he has largely adhered to GOP orthodoxy when it comes to judicial appointments, including his selection of Neil Gorsuch for the Supreme Court a year ago. And the president, in the moments after Kennedy’s retirement was announced, made clear that he understood the opportunity to shape the court for generations.
“It’s always been considered a tremendous — a tremendously important thing,” the president said at the White House on Wednesday. “Some people think outside of, obviously, war and peace, it’s the most important thing that you could have.”
White House aides signaled the president would look to quickly move toward announcing a nomination. And Senate Republicans said they would be willing to hold a confirmation vote this fall to replace Kennedy, a perennial swing vote on the court, despite Democratic cries of hypocrisy since the GOP refused to hold hearings on Obama’s choice of Merrick Garland because it was an election year.
Kennedy’s retirement sets up a monumental confirmation fight and raises the stakes even higher for the November midterm elections, in a campaign season that already featured the future of the Supreme Court as a defining issue after several significant rulings in recent days. The court’s conservative majority asserted itself on Trump’s travel ban, worker rights, voting rights and religious freedom.
With the White House reeling after a week’s worth of heart-wrenching images of forced family separations at the southern border, the court’s support for the travel ban gave Trump a welcome boost and is sure to embolden him in pressing hard-line immigration policies heading into the midterms. Though the ruling was at its heart a defense of executive powers, the president took it as affirmation of the hawkish policies and incendiary rhetoric he unveiled in his June 2015 campaign kickoff and now wants at the heart of the GOP’s efforts this November.
The court also ruled on a cause celebre for the right, as Kennedy — despite his long history of supporting gay rights — wrote the court’s 7-2 opinion on narrow grounds that absolved a Colorado baker of discrimination for refusing to create a wedding cake for a same-sex couple. Moreover, the court overruled a 41-year-old precedent that allowed public employee unions to collect fees from non-members, a decision viewed as a major blow for Democrats.
Liberals compared that ruling to the 2010 decision that let corporations spend unlimited amounts on elections and the 2013 ruling that struck down a key section of the Voting Rights Act as actions that could fundamentally change how campaigns are waged and votes are cast. A 2018 study released as a National Bureau of Economic Research paper found that states with right-to-work laws that weaken unions reduce the vote shares of Democratic presidential candidates by 3.5 percentage points.
Senate ready to move
McConnell said Wednesday that the Senate “stands ready” to swiftly move on Trump’s impending choice and added that “it’s imperative that the president’s nominee be treated fairly.”
Democrats immediately cried foul and accused the GOP of a double standard.
“Our Republican colleagues in the Senate should follow the rule they set in 2016: Not to consider a Supreme Court justice in an election year,” said Senate Minority Leader Chuck Schumer.
But Republicans appeared unbowed. Installing conservative justices has long been paramount to the GOP, a sentiment that only accelerated after the power of the court was on full display with the 2000 decision that ruled in favor of George W. Bush’s right to the presidency. In 2013, McConnell, then minority leader, cautioned Democrat Harry Reid not to invoke the “nuclear option” — lowering the vote threshold for confirmation of judges and Cabinet officials from 60 to 51 votes. Since becoming majority leader, McConnell has held Supreme Court justices to the same lower threshold.
No hearings for Garland
But the centerpiece of the GOP plan was McConnell’s refusal to hold hearings for Garland after Justice Antonin Scalia’s death in February 2016. Though the precedent had held that new justices be seated even in election years, McConnell kept the spot open on the bet that a Republican could win that November — even if that Republican were Donald Trump.
A court seat being on the line proved a powerful incentive for Republicans that fall, many willing to set aside their distaste for Trump’s personal failings and incendiary rhetoric in order to add a conservative to the court. Trump himself took the unusual step of publicly releasing a list of Supreme Court candidates, most of whom were traditional jurists that many Republicans believed would uphold conservative values.
Since his election, the president has often acted as a thorn in Republicans’ side, frequently breaking with GOP dogma while attacking members of his own party, including McConnell. Their reward is another GOP pick for the court, and Trump suggested that he would again nominate someone Republicans would cheer.
“We have a very excellent list of great talent and highly educated, highly intelligent, hopefully tremendous people,” Trump said. “It will be somebody from that list.”