Senate

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.

Some GOP lawmakers argue that Kennedy should feel comfortable with President Trump'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 McConnell (R-Ky.) kept the seat vacant until after President Obama left office nearly a year later. That decision left Obama's nominee, Merrick Garland, 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 Heller (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 Schumer (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 Clinton 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 Graham (R-S.C.), a member of the Senate Judiciary Committee.

Senate Republican Whip John Cornyn (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."

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