President Donald Trump and Senate Republicans plan to move quickly to install a new Supreme Court justice to replace Justice Anthony Kennedy – launching a monumental confirmation fight in an election year that will likely reshape the court for a generation.
Trump said Wednesday afternoon that the effort to replace Kennedy, a perennial swing vote on the court, will start “immediately” and Senate Repubicans said they plan to hold a confirmation vote in the fall.
Trump praised Kennedy as someone who has been a “great justice of the Supreme Court” and added, “hopefully we will pick someone who is just as outstanding.” The president said he would select a nominee from a list he first released during the campaign to assuage the concerns of conservatives skeptical over who he would pick for the court.
“They will come from that list of 25 people,” Trump said.
Among the people considered to be on Trump’s shortlist, according to current and former West Wing aides, are: Brett Kavanaugh of the District of Columbia Circuit Court of Appeals; Thomas Hardiman of the Third Circuit, Raymond Kethledge and Amul Thapar of the Sixth Circuit and Amy Coney Barrett of the Seventh Circuit.
Hardiman was a finalist to fill the most recent Supreme Court vacancy, a nomination that ultimately went to Neil Gorsuch, who was confirmed in April 2017. Thapar, who was the first judge confirmed to the appellate courts during Trump’s presidency, has been pitched by Senate Majority Leader Mitch McConnell, R-Ky., to the White House as a potential Supreme Court candidate, according to a person familiar with the discussions.
On Capitol Hill, Senate Republicans were eager to have Kennedy’s successor confirmed before November’s midterms, when the party is at risk of losing its already razor-thin 51 to 49 majority.
“The Senate stands ready to fulfill its constitutional role by offering advise and consent on President Trump’s nominee to fill this vacancy,” McConnell said Wednesday afternoon. “We will vote to confirm Justice Kennedy’s successor this fall.”
McConnell’s push to move quickly angered Democrats who remain furious with the Republican leader for refusing in 2016 to consider President Barack Obama’s nominee, Merrick Garland, to replace Justice Antonin Scalia, who died in February of that year. At the time, McConnell said the issue should be left to voters in the 2016 election – Democrats said the same standard should be applied now.
“Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they should deserve to be heard then,” Senate Minority Leader Charles Schumer, D-N.Y., said in a floor speech. “Anything but that would be the absolute height of hypocrisy.”
McConnell dismissed Democrats’ complaints, arguing the precedent he established in 2016 only applied during presidential election years.
Democrats have little recourse when it comes to blocking or slowing down consideration of Trump’s nominee. Senate Republicans voted last year to eliminate the 60-vote requirement for Supreme Court nominees, meaning the GOP will not need Democratic votes to confirm Kennedy’s successor unless some Republicans defect.
Both parties are preparing to make the nomination fight an issue for the midterm elections.
Schumer called the Kennedy vacancy the “most important . . . in at least a generation” and 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.”
Republicans have been keeping a close eye on Kennedy, anxious over whether he would retire after this year’s term, which concluded Wednesday. People close to the administration said the White House was prepared for the vacancy, ready to nominate someone from the list released by Trump.
Leonard Leo, the influential executive vice president of the Federalist Society who is an informal adviser to the White House on judicial nominations, noted that White House counsel Donald McGahn had already vetted many of the names during the presidential campaign
“You could throw a dart at the list and you would have a good pick,” said Leo, who said he had yet to speak with Trump about the vacancy, but that he expects to soon. He said he expects to see a nominee within a few weeks, adding that a nominee usually needs 70 and 100 days to be confirmed.
Leo was on Capitol Hill Wednesday before Kennedy’s announcement at the invitation of Sen. Mike Lee, R-Utah, to brief Senate Republicans on key rulings the court issued this term – although he said he didn’t get a single question on a potential vacancy.
GOP senators leaving that closed-door lunch were stunned but clearly delighted to hear the news of Kennedy’s retirement – a move that not only could leave a more conservative imprint on the court for decades, but also energize Republican voters.
“Am I maintaining my composure?” a smiling Senate Majority Whip John Cornyn, R-Texas, said when told of the news by reporters. “Wow.”
A Trump adviser said the president has often mused about getting to name three or four Supreme Court justices during his presidency and talks about potential picks frequently because he knows conservatives care about the issue. Trump also says he wants young judges. Gorsuch, at 50, is the youngest member of the Supreme Court.
“He understands this is at the center of what his legacy will be,” Leo said.
Trump told reporters he met privately with Kennedy earlier Wednesday for about a half an hour. He pressed the retiring justice whether he had any recommendations for his successor, although Trump didn’t answer when asked whom Kennedy suggested.
The sole non-judge on Trump’s shortlist – Lee – said ” he would not say no” if the White House approached him about replacing Kennedy.
“I’m a lifelong watcher of the Supreme Court. I started watching Supreme Court arguments for fun when I was 10 years old,” Lee said. “So if somebody asked me if I would consider that I would not say no. But the president’s got a decision to make and I trust his ability to make it and make it well.”
GOP senators declined to weigh in on whom Trump should nominate. But one thing Republicans all shared was an eagerness to get Kennedy’s successor confirmed promptly.
“I’m ready to saddle up and ride. As soon as the president gets us somebody, let’s go. I’ll stay here over the Fourth of July,” said Sen. John Neely Kennedy, R-La. Reminded that he is scheduled to go on a congressional trip to Russia next week, Kennedy responded: “I’ll come back from Russia. Can you commute? How far is it?”
(c) 2018, The Washington Post · Seung Min Kim, Josh Dawsey