WASHINGTON -- A political clash over replacing Justice Anthony Kennedy roared to life in Washington on Thursday, just hours after the Supreme Court announced his retirement.
Democrats and liberal advocacy organizations face enormous challenges if they hope to prevent President Donald Trump and Senate Republicans from installing a conservative justice who could shift the ideological balance of the court for generations.
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. Senate Majority Leader Mitch McConnell of Kentucky has vowed to move swiftly once Trump announces his choice.
But the potential effect of 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 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 precedents that favor liberal causes.
Democratic lawmakers gathered Thursday morning on the steps of the Supreme Court, flanked by members of liberal groups, to declare their opposition to all of the potential candidates on Trump's public list of 25 possible jurists.
Rep. 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, LGBTQ rights, civil rights, workers' rights and health care," Pelosi said.
Liberal activists and Democratic lawmakers have demanded that a replacement for Kennedy not be confirmed until after the midterm elections in the fall, arguing that Americans should be given the opportunity to select the members of the Senate whom they want to vote on the vital selection.
Democrats have been quick to point out that Republicans, led by McConnell, used a similar argument in 2016, ahead of the presidential election, as they blocked even a hearing for Judge Merrick Garland, the choice of former President Barack Obama to replace the late Justice Antonin Scalia.
Senate Minority Leader Charles Schumer, D-N.Y., said Thursday that it would be the "height of hypocrisy" to vote on Trump's nominee before this year's midterm elections.
"If the Senate's constitutional duty to advise and consent is just as important as the president's right to nominate, which the Constitution says it is, why should a midterm election be any less important that a presidential election?" Schumer said.
McConnell defended his decision to move forward with filling the vacancy this year, in contrast to his handling of the nomination of Garland.
"This is not 2016," 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."
McConnell pointed to the Supreme Court confirmations of Justices Elena Kagan in 2010, Stephen Breyer in 1994 and David 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," McConnell said.
Holding off on a vote is unlikely to happen, given that Trump and his Republican allies 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.
Kennedy, who was chosen by President Ronald Reagan, cast the deciding votes in controversial cases, including one that upheld the underpinnings of Roe v. Wade. He also wrote each of the court's major gay-rights decisions, including Obergefell v. Hodges, which said the Constitution requires that gay couples be allowed to marry.
With Kennedy's departure, Republicans have a longed-for opportunity to tip the balance of the court. It already has four justices picked by Democratic presidents and four others picked by Republicans, so Trump's pick could shift the ideological balance toward conservatives for years to come.
Several Democratic senators considering 2020 presidential runs jumped into the debate Thursday morning from the steps of the Supreme Court.
Sen. Cory Booker pledged a long-term battle to prevent Trump from rushing a conservative judge onto the court.
"We now must fight," the New Jersey Democrat said.
Sen. Kirsten Gillibrand said Kennedy's retirement sets up a situation where "women's lives are at risk."
The New York Democrat said that giving Trump the chance to pick Kennedy's replacement threatens abortion rights and raises the question of "whether we are going to be arresting women for making decisions about their bodies."
The debate over abortion rights has put a spotlight on two key female Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska. Both have supported abortion access.
Murkowski vowed a careful vetting of the pick, saying she has "extremely high" standards for the Supreme Court.
"There is no doubt that the President's nominee to succeed Justice Kennedy can expect exacting scrutiny from the Senate and that is the standard I will apply in evaluating the nominee," she said in a statement.
Collins, meanwhile, said the landmark Roe v. Wade decision that codified abortion rights is "settled law."
"I always look for judges who respect precedent," she told reporters Wednesday.
DIVIDED DECISIONS
Justice Neil Gorsuch's role in his first full term on the Supreme Court offers a striking illustration of the difference a single justice can make, and why both sides are gearing up for a fight over replacing Kennedy.
The term that ended Wednesday was a triumphal one for conservatives. In Kennedy's last term and the first for Gorsuch, Kennedy's former law clerk, both justices were part of 5-4 conservative majorities to uphold Trump's travel ban, deal labor unions a major financial setback, affirm Ohio's aggressive purge of its voter rolls and prohibit millions of workers from banding together to complain about pay.
Those cases could have come out differently -- if they even had made their way to the Supreme Court -- had the seat Gorsuch holds instead been filled by Garland.
There were 14 cases in all in which conservatives prevailed and liberals were in dissent. By contrast, the liberal justices were in the majority in just three ideologically divided cases in which one conservative joined them. The most significant of those was a digital-age privacy decision saying that police generally need a warrant for cellphone company records that show where a phone was used.
Beyond the votes in individual cases, the makeup of the court in part determines the kind of cases people push to get in front of the justices. The case that ended labor unions' ability in nearly two dozen states to collect fees from government workers they represent is a prime example.
When Scalia died, the remaining eight justices divided 4-4 in an earlier case about the same issue. After Trump won the 2016 election, anti-union groups pressed to get a new case to the high court quickly.
Abortion foes could follow a similar path with Kennedy's successor on a court that could be more willing to sustain abortion restrictions.
As the justices look ahead to next term, the 30 cases already set for arguments generally do not have the same high profile as this term's biggest ones. Among the notable cases are appeals by death-row inmates in Alabama and Missouri, a case about the rights of migrants in detention and a class-action case involving iPhone apps.
The court still could return to two big issues it considered but ultimately did not decide this term -- political gerrymandering and religious objections to LGBT rights under anti-discrimination laws.
On both counts, the liberal justices saw Kennedy as a potentially decisive vote to impose limits on redistricting for political gain and to assert that a business owner's opposition to same-sex marriage could not justify a refusal to serve a customer.
The issues may be back at the high court soon, but probably in front of a more conservative court.
The court's senior liberal justice, 85-year-old Ruth Bader Ginsburg, was prophetic when she talked with a reporter in the summer before Trump's election.
At that point, Kennedy had just written an opinion upholding the consideration of race in college admissions and the court had rebuked Texas for burdensome restrictions on abortion clinics.
Ginsburg was looking ahead to a Hillary Clinton presidency, but she acknowledged how different things would look for the court if Trump won.
"I don't want to think about that possibility, but if it should be, then everything is up for grabs," Ginsburg said.
Information for this article was contributed by Michael D. Shear and Thomas Kaplan of The New York Times; and by Mark Sherman, Catherine Lucey, Lisa Mascaro, Mary Clare Jalonick and Padmananda Rama of The Associated Press.
A Section on 06/29/2018