Republicans don’t get to decide when swing Supreme Court Justice Anthony Kennedy gets to retire. But they should hope he departs right after next year’s term, several months before the 2018 election. The timing of his announcement could end up being the critical factor in whether House Speaker Paul Ryan maintains his majority and prevents Nancy Pelosi from riding anti-Trump anger into power again.
For all the talk about the midterms being so far away—and hard to predict—the reality is that the big-picture political dynamic is largely baked in the cake for the next 17 months. President Trump’s job approval is unlikely to rise much above 40 percent given the steadfast views of those who strongly oppose him. The anti-Trump energy on the Left shows no signs of flagging, so Democratic recruiting should go fairly well. Trump will keep tweeting regularly and provocatively, and Democrats will continue to take the bait and overreact.
The biggest political wild card is whether Republican voters will turn out as they did in the Georgia special election, or stay home because they’re disheartened by Trump and the party’s failure to pass its agenda. The difference between Karen Handel overperforming Trump’s 2016 election showing and other Republicans in special elections badly underperforming his percentages is mostly due to depressed Republican turnout. If last year’s presidential election taught us anything, it’s that Republicans have a formidable coalition when both the Trumpian populists and Ryan-esque establishment voters show up to back GOP candidates.
Without a high-profile race generating outsize national attention, the turnout advantage should stay with the Democrats—unless Kennedy decides to upend the equation.
Even though the House of Representatives doesn’t vote on judicial nominees, the political energy that a Supreme Court vacancy would bring to the political environment would likely spur partisan turnout, especially in states with contested Senate races. All the hot-button issues, including abortion rights, religious freedom, and the limitations of executive-branch power, will reemerge.
That should normally benefit Democrats, but their core voters are already hyper-jazzed to protest Trump. It’s the GOP base that’s showing signs of apathy and whose interest fluctuated greatly depending on the stakes of the race. Make the midterms a referendum on the future of the Supreme Court, and it’s a safe bet that Republicans will show up in droves and have a good chance of maintaining their House majority.
Just look at the last presidential election, when Republicans litigated the late Justice Antonin Scalia’s vacancy much more effectively than Democrats. More than one-fifth of voters said Supreme Court appointments were the most important factor in their vote. That group supported Trump by a sizable 15-point margin, 56-41 percent. Most Republican strategists now give Mitch McConnell significant credit in helping Trump win the presidency, since many GOP voters who disliked Trump nonetheless voted for him because of the high stakes of the Court fight.
The stakes will be even higher when Kennedy steps down. While Justice Neil Gorsuch replaced another conservative on the bench, Kennedy’s swing vote could be replaced by a more-reliably conservative jurist. The prospect of a conservative high court would unite Trump loyalists and traditional conservatives.
Republicans, assuming they play their hand effectively, would hold most of the political leverage in a high-stakes judicial fight. Because they invoked the nuclear option to approve Gorsuch, they only need 50 votes for confirmation. Democrats will be fighting Trump’s pick as aggressively as ever, fueled by the demands of their base and the long-term consequences of the Court’s ideological shift. But if Republicans pick a squeaky-clean, center-right nominee whose credentials are unquestioned, they should have little trouble withstanding the Democratic fusillade.
The big question is Kennedy’s timing. Speculation over whether he’ll retire shortly after this year’s term has reached a fever pitch. The Trump White House seems strangely eager for an imminent Kennedy retirement, not recognizing the benefits that a midterm Court battle would give them. If anything, the Supreme Court’s decision to hear three consequential cases next term—ruling on Trump’s travel ban, partisan gerrymandering, and a landmark religious-freedom case—raises the likelihood that the Court’s perennial swing vote will want to end his long tenure with a consequential bang.
Throughout the Obama years, Democrats struggled to figure out how to mobilize their coalition of less-reliable voters in midterm elections. With Trump in office, they finally cracked the code. It would be ironic if one of the leading pragmatists in public life throws a wrench into their plans and allows Republicans to snatch victory from the jaws of defeat.