GOP senators fuel Justice Kennedy retirement talk

Senate Republicans are privately saying they hope Justice Anthony Kennedy announces his retirement in the coming months, before the fall midterm elections, arguing the move would give Republicans something to rally their base as they work to maintain control of the Senate.

While Kennedy, 81, has not directly signaled his plans for retirement, at least one senator has predicted it could come over the summer. Others maintain that confirming a conservative successor to Kennedy, who was nominated by Ronald Reagan in 1988, would be easier while Republicans control the Senate.

ADVERTISEMENT

Some GOP lawmakers argue that Kennedy should feel comfortable with President TrumpDonald John TrumpTrump watching 'very closely' as Portland braces for dueling protests WaPo calls Trump admin 'another threat' to endangered species Are Democrats turning Trump-like? MORE’s judgment after he tapped Neil Gorsuch, one of his former clerks, to replace the late Justice Antonin Scalia. The vacancy following Scalia's death in early 2016 became a rallying call for conservatives in elections later that year.

“He’s a Republican, his wife’s a Republican, his kids are Republican. You’d think he'd want his successor to be appointed by a Republican president,” said one GOP senator who requested anonymity to speak candidly.

The lawmaker said a rumor had circulated months ago that Kennedy wasn’t hiring new clerks, raising chatter in the Senate that he would step down this summer. But speculation about an imminent departure has apparently died down some in recent weeks. 

Kathy Arberg, a spokeswoman for the Supreme Court, did not respond to a query about Kennedy’s political affiliation or about the status of future clerks.

The GOP senator said it would help Republicans keep control of the Senate if Kennedy announced his retirement, reminding voters of the Senate’s importance in shaping the courts.

“The only reason we won the White House and kept the Senate was because of that open Supreme Court seat,” the lawmaker added, referring to the vacancy following Scalia's death.

Scalia died in February 2016, but Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellAre Democrats turning Trump-like? House Democrat calls for gun control: Cities can ban plastic straws but 'we can't ban assault weapons?' Churches are arming and training congregants in response to mass shootings: report MORE (R-Ky.) kept the seat vacant until after President Obama left office nearly a year later. That decision left Obama's nominee, Merrick GarlandMerrick Brian GarlandLaw professor: Court-packing should be 'last resort' Here's how senators can overcome their hyperpartisanship with judicial nominees McConnell campaign criticized for tombstone with challenger's name MORE, in limbo for months.

Many conservatives said they put aside their reservations about Trump and voted for him because they felt confident he would pick a conservative justice to replace Scalia. For his part, Trump sought to reassure conservatives throughout his 2016 campaign that he would pick a nominee in the mold of Scalia, including releasing a list of potential nominees.

Now, Republicans are privately wondering if there could be another Supreme Court vacancy in a major election year where Democrats are viewed as enjoying stronger enthusiasm.

Sen. Dean HellerDean Arthur HellerThis week: Barr back in hot seat over Mueller report Trump suggests Heller lost reelection bid because he was 'hostile' during 2016 presidential campaign Trump picks ex-oil lobbyist David Bernhardt for Interior secretary MORE (Nev.), the chamber’s most vulnerable Republican up for reelection this year, told an audience in Las Vegas earlier this month that he expected Kennedy to retire “around sometime early summer.”

He expressed hope that it would “get our base a little motivated because right now they’re not very motivated,” according to an audio recording of the event first reported by Politico.

A separate GOP senator told The Hill that confirming another conservative justice to the court would give Senate Republican candidates another solid accomplishment to run on in the midterms. 

“It would be helpful if he made this the cap of his career,” the lawmaker said of Kennedy. “It would be very helpful to appoint another Neil Gorsuch on the court for the next decade.”

A CNN–SSRS poll of registered voters nationwide last month found that Democrats are generally more enthusiastic about voting in midterm races. It found that 51 percent of the Democratic base described themselves as extremely or very enthusiastic about voting, while 41 percent of Republicans described themselves that way.

Republican senators worry that if Democrats take back the Senate in 2018 — which they view as a less than 50-50 proposition — Senate Democratic Leader Charles SchumerCharles (Chuck) Ellis SchumerAppropriators warn White House against clawing back foreign aid Colorado candidates vying to take on Gardner warn Hickenlooper they won't back down Trump ahead of New Hampshire speech: Lewandowski would be 'fantastic' senator MORE (N.Y.) could keep an open Supreme Court seat vacant until the end of Trump’s first term, as payback for Garland.

Conservatives applauded the Senate confirmation of Trump's pick of Gorsuch in April, which McConnell later ranked as the biggest accomplishment of his career. 

Replacing Kennedy, however, could have a far bigger impact on the future direction of the court, as he has emerged as its most important swing vote after the retirement of former Justice Sandra Day O’Connor.

Kennedy sided with liberal justices — as well as Chief Justice John Roberts — in upholding the constitutionality of ObamaCare in 2015 and has written the majority opinions in four landmark decisions protecting LGBT rights.

But he also authored the landmark 2010 decision in Citizens United v. FEC, which substantially weakened campaign finance law and gave more power to outside advocacy groups.

Adding Gorsuch to the court didn’t change its ideological balance as much, given that Scalia had been a reliable conservative.

Senate Democrats must defend 26 seats in November, including 10 in states that Trump carried over Hillary ClintonHillary Diane Rodham ClintonAre Democrats turning Trump-like? The Hill's Campaign Report: Battle for Senate begins to take shape The Hill's Morning Report — Trump and the new Israel-'squad' controversy MORE in 2016. Republicans only need to worry about nine seats.

Democratic sources, still angry over the treatment of Garland, say the GOP is right to fret.

Publicly, however, Republicans don’t want to appear to be putting pressure on Kennedy, who is widely respected.

“I would love to have a chance to replace Justice Kennedy on a Republican watch, but that’s up to him. He has the right to serve as long as he wants,” said Sen. Lindsey GrahamLindsey Olin GrahamGraham warns Trump on Taliban deal in Afghanistan: Learn from 'Obama's mistakes' Appropriators warn White House against clawing back foreign aid Trump meets with national security team on Afghanistan peace plan MORE (R-S.C.), a member of the Senate Judiciary Committee.

Senate Republican Whip John CornynJohn CornynThe Hill's Campaign Report: Battle for Senate begins to take shape The Hill's Morning Report — Trump and the new Israel-'squad' controversy O'Rourke says he will not 'in any scenario' run for Senate MORE (Texas), another member of the Judiciary Committee, said it “would be presumptuous of me to tell Justice Kennedy what to do.”

“He’s a smart guy. He’ll figure that out,” he added. “Obviously it’s easier to manage when we’re in control of the process as the majority.”