AGAINST THE GRAIN

How Justice Kennedy Might Rescue the GOP

If he retires after next year’s term, it would set up a Court fight that would drive Republicans to the polls—and perhaps save their congressional majorities.

Supreme Court Justice Anthony Kennedy (right) and Justice Neil Gorsuch participate in a public swearing-in ceremony for Gorsuch in the Rose Garden of the White House on April 10.
AP Photo/Carolyn Kaster
June 27, 2017, 8 p.m.

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.

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