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The day after Justice Anthony Kennedy announced his retirement from the Supreme Court, advocacy groups began running ads.
“President Trump has proven that he wants the best of the best on the Supreme Court,” the narrator said in a Judicial Crisis Network ad that urged viewers to call their senators. “And with your help, America will get another star on the Supreme Court.”
Judicial Crisis Network spent $10 million to help confirm Justice Neil Gorsuch last year, and it expects to spend even more this time. That will comprise only part of what may be the most expensive Supreme Court confirmation battle in history.
“This will have a generational impact on the court,” Carrie Severino, chief counsel of Judicial Crisis Network, told me. “You can see from Justice Kennedy’s own tenure how transformative a single vote can be.”
President Donald Trump began interviewing potential nominees within days of Kennedy’s announcement and said he would name a replacement on July 9. Senate Majority Leader Mitch McConnell said the Senate would promptly take up the nomination, but the person will face a more difficult road than the one Gorsuch traveled.
While Gorsuch replaced the late conservative Justice Antonin Scalia, the next nominee will fill the shoes of the court’s swing vote. Kennedy’s final term symbolized his tenure: He sided with the majority in all 14 5-to-4 decisions the court issued in June—including controversial rulings on free speech and religious freedom.
Another complicating factor: numbers. Democrats picked up a Senate seat in Alabama’s special election last year, leaving Republicans with a 51-49 majority. But it’s effectively 50-49, since Sen. John McCain, R-Ariz., has missed much of this year due to cancer treatments.
Sen. Susan Collins, R-Maine, put that one-vote majority in doubt on July 1, when she went on national TV to say she wouldn’t vote for a nominee who “demonstrated hostility” toward Roe v. Wade, which she considers settled law: “That would indicate an activist agenda.”
Collins’ affinity for precedent is ironic, since Kennedy earned a reputation for setting new ones. He often wrote opinions describing the world as he thought it should be—not necessarily what the law allowed. Here are just three examples:
In Planned Parenthood v. Casey (1992)—which upheld Roe v. Wade—Kennedy wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
In Lawrence v. Texas (2003)—which invalidated state anti-sodomy laws—Kennedy wrote: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
In Obergefell v. Hodges (2015)—which found a constitutional right to same-sex marriage—Kennedy wrote: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Justice Antonin Scalia, in his scathing Obergefell dissent, called Kennedy’s words “the mystical aphorisms of a fortune cookie.”)
Kennedy’s complex worldview will no doubt be an obstacle to any person who hopes to replace him.
Since 1975, Supreme Court nominees have waited an average of 67 days for a confirmation vote—which in this case would land in September, weeks before voters go to the polls in midterm elections. That would put 10 Democrats up for reelection in states Trump won in a difficult position.
Three red-state Democrats voted to confirm Gorsuch: Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia. President Trump summoned all three—along with Collins and fellow moderate Sen. Lisa Murkowski, R-Alaska—to the White House to discuss the court opening.
During his campaign Trump released a list of 21 Supreme Court candidates and vowed to fill future vacancies from it. But last year the White House added four more to the list.
But the short list appears settled: Amy Coney Barrett, 46, of the 7th Circuit Court of Appeals; Brett Kavanaugh, 53, of the D.C. Court of Appeals; Thomas Hardiman, 52, of the 3rd Circuit Court of Appeals; and Raymond Kethledge, 51, of the 6th Circuit Court of Appeals.
“The names we’re hearing are all excellent judges,” said Kelly Shackelford, president of First Liberty Institute, a nonprofit law firm focused on religious liberty issues. “We feel really confident about the president and who he’s going to pick—not just because of the Gorsuch appointment, but all of the federal court and appeals court nominations; they’ve been excellent.“
Regardless of who the nominee is, two things seem certain: an ugly confirmation battle and a central role for Roe v. Wade.
The implications for the church are huge, as Janet Vestal Kelly, president of America’s Kids Belong, noted in a Facebook post after Kennedy’s retirement announcement. She said the ongoing foster care crisis may only be a warm-up for what lies ahead: “I often wonder who would take care of the babies saved from abortion if Roe v. Wade were overturned. Now that SCOTUS dynamics may change, it’s not a hypothetical question.”
—Emily Belz contributed to this report