The retirement of Supreme Court Justice Anthony Kennedy gives President Trump and Republican senators the momentous opportunity to nominate and confirm a justice who would overturn the landmark Roe v. Wade case, 45 years after the Supreme Court found that Americans have the constitutional right to abortion.
Kennedy’s announcement Wednesday sent a shock through the 2018 midterm races, animating the bases of both major political parties, which essentially view abortion as a litmus test.
While that may help Democrats in suburban districts flip the House this fall, it could also help Republicans keep the Senate because many Democratic senators up for reelection in November represent red states like North Dakota, Montana, Indiana, and Missouri.
Recent history suggests that Republicans care more about the issue than Democrats. In 2016, conservatives were more motivated than liberals to fill the vacant Supreme Court seat Trump later filled with Neil Gorsuch. Democrats at the time shouted slogans like “We Need Nine” and “Do Your Job” at Republicans, convinced that Senate Majority Leader Mitch McConnell’s unprecedented obstruction of President Obama’s pick, Merrick Garland, would spur their voters to the polls. That effort failed.
On Wednesday, many Democrats took a different tack, focused on health care and abortion rather than some sense of lost decorum.
“This is the most important Supreme Court vacancy for this country in at least a generation,” Senate Minority Leader Chuck Schumer said. “Nothing less than the fate of our health care system, reproductive rights for women, and countless other protections for middle-class Americans are at stake.
“The Senate should reject, on a bipartisan basis, any justice who would overturn Roe v. Wade or undermine key health care protections,” he added.
Unlike Gorsuch, who replaced the originalist Antonin Scalia, the next Supreme Court justice will be filling a swing seat. From the bench, Kennedy enthused conservatives by weakening campaign finance law in Citizens United, but also dismayed them by upholding core abortion rights in cases like Planned Parenthood v. Casey.
Longtime observers of the Court doubt that Trump would pick anyone who supports abortion rights. “Anthony Kennedy is retiring,” tweeted The New Yorker’s Jeffrey Toobin. “Abortion will be illegal in twenty states in 18 months.”
Liberal groups warned their followers about that possibility. An affiliate of American Bridge noted that Trump said during the presidential campaign that if he put two or three judges on the Court, Roe v. Wade would be overturned.
“The significance of today’s news cannot be overstated: The right to access abortion in this country is on the line,” wrote Dawn Laguens, executive vice president of Planned Parenthood Federation of America, in a statement.
In office, Trump has delighted the antiabortion community, signing the Mexico City policy banning federal funds for international groups that provide abortion services, and becoming the first president to address the annual March for Life rally. Last month, Marjorie Dannenfelser, president of the Susan B. Anthony List, said that Trump “is governing as the most pro-life president our nation has ever seen.”
Conservative groups quickly mobilized into action Wednesday. The Judicial Crisis Network announced a seven-figure ad buy to put pressure on red-state Democratic senators. For the Scalia vacancy, they spent about $17 million dollars to influence opinion of Garland and Gorsuch.
“We will be there to remind people of their records and encourage people to ask their senators to support President Trump’s excellent nominee,” Carrie Severino, the chief counsel and policy director of JCN, told National Journal.
Brian Rogers, the executive director of the conservative group America Rising Squared, argued that Democrats are in a tougher position today than they were in 2016.
“They lost three red-state Democrats last year on the Gorsuch vote, and several more 2018ers will be feeling the heat since their states voted for President Trump,” Rogers said. “Yes, Democrats are energized, but it's mostly their far-left base—like the socialist who won in New York this week—and that's not the path to victory for most vulnerable Democrats in 2018. Senators will have a clear choice: Vote for a nominee who will uphold the Constitution, or vote for the extreme liberal agenda.”
With a 51-49 Senate majority, Republicans have a slim margin to confirm the next nominee. And Sens. Lisa Murkowski of Alaska and Susan Collins of Maine support abortion rights, complicating Trump and McConnell’s wish to pull the Court further to the right.
“I view Roe v. Wade as being settled law,” Collins told reporters Wednesday. “It’s clearly precedent, and I always look for judges who respect precedent.”
McConnell said that the Senate will vote on Kennedy’s successor this fall. If he or she begins serving by the beginning of the Court’s term on the first Monday in October, Americans would enter the voting booth with Trump’s choice at the top of mind.
Pointing to this week’s decisions, which included the Court dealing a blow to public-sector unions and upholding the president’s travel ban, Josh Holmes, a top political lieutenant for McConnell, tweeted that “there is simply nothing in the political universe more important for conservatives than this upcoming nomination.”
Democrats are hoping to excite their voters on the vacancy in part by raising millions of dollars to compete with the likes of the Judicial Crisis Network. Brian Fallon, a former top staffer for Schumer and Hillary Clinton, recently started Demand Justice to mobilize the Left.
The recognition that more needs to be done is widespread among Democratic consultants.
Eddie Vale, who worked on a campaign to confirm Garland, said Democrats need to be aggressive as their adversaries.
“The biggest lesson should be: Do what McConnell would do,” he said. “If we're worried about discussions about civility, norms, or institutions, we have already lost. As McConnell has shown, this is a battle of pure, raw, politics, and we need to do everything we can to fight back just as hard.
“We need to explain to progressive voters—because it's the truth—that every issue they care about from Roe v. Wade, to the environment, to LGBT rights, union rights, etc., will be destroyed for possibly a generation if Kennedy is replaced with an extremist Trump nominee,” he added.