Supreme Court vacancy throws Senate battle into chaos

Republicans are greeting the Supreme Court clash expected to dominate Senate politics in the months leading to Election Day with glee, but it is filling Democrats with anxiety.

The GOP, which has been nervous about turnout, sees the prospect of a summer battle over Trump’s pick to succeed Justice Anthony Kennedy as a way to energize the base and get people to the polls.

Democrats, who had begun to feel more optimistic about November despite a difficult map that sees the party defending seats in deep Trump territory, are suddenly stuck between their voters and donors.


Voter intensity among conservatives and liberals on the issue is expected to be high, but exactly how that plays out in Senate races in North Dakota, Montana, Indiana, Missouri and West Virginia is uncertain.

“It could have [an impact] in terms of voter turnout,” said Sen. Thom TillisThomas (Thom) Roland TillisDems ready aggressive response to Trump emergency order, as GOP splinters Business, conservative groups slam Trump’s national emergency declaration GOP senator dedicates heart photo to wife from Senate floor for Valentine's Day MORE (R-N.C.), vice chairman of the National Republican Senatorial Committee. “It would probably produce intensity on both sides.”

Kennedy’s surprise decision to call it quits hands President TrumpDonald John TrumpGillibrand backs federal classification of third gender: report Former Carter pollster, Bannon ally Patrick Caddell dies at 68 Heather Nauert withdraws her name from consideration for UN Ambassador job MORE an opportunity to significantly remake the high court, replacing a conservative justice, who occasionally sided with liberals on issues like same-sex marriage and abortion rights, with a down-the-line originalist in the mold of his first nominee, Justice Neil Gorsuch.

Democrats and liberal groups see any new replacement as a potential threat to a host of core issues, from union and worker rights to environmental protections, the Affordable Care Act, and civil and voting rights.

“I didn’t think our enthusiasm could get bigger, but the tempest is coming,” said Sen. Chris MurphyChristopher (Chris) Scott MurphyHouse passes bill to end US support for Saudi war in Yemen This week: Border deal remains elusive as shutdown looms Border talks stall as another shutdown looms MORE (D-Conn.). 

The fight will put more of a political focus on the race for the Senate, which had been overshadowed to an extent by the battle for the House.

“Justice Kennedy’s retirement makes the issue of Senate control one of the vital issues of our time. The most important thing we can do,” President Trump said Wednesday in Fargo, N.D., where he was stumping for Rep. Kevin CramerKevin John CramerSenators highlight threat from invasive species Overnight Defense: Top general wasn't consulted on Syria withdrawal | Senate passes bill breaking with Trump on Syria | What to watch for in State of the Union | US, South Korea reach deal on troop costs GOP senators think Trump would win vote on emergency declaration MORE (R).

Several outside groups have pledged to spend millions on advertising campaigns pressuring senators for or against an eventual nominee. That includes liberal groups that will pressure Democrats — even those in conservative states — to block Trump’s pick.

Democrats, including Sens. Joe ManchinJoseph (Joe) ManchinSenate confirms Trump pick William Barr as new attorney general GOP wants to pit Ocasio-Cortez against Democrats in the Senate Senate poised to confirm Trump’s attorney general pick MORE (W.Va.), Joe DonnellyJoseph (Joe) Simon DonnellyOvernight Energy: Trump taps ex-oil lobbyist Bernhardt to lead Interior | Bernhardt slams Obama officials for agency's ethics issues | Head of major green group steps down Trump picks ex-oil lobbyist David Bernhardt for Interior secretary EPA's Wheeler faces grilling over rule rollbacks MORE (Ind.), Claire McCaskillClaire Conner McCaskillMcCaskill: Lindsey Graham 'has lost his mind' Trey Gowdy joins Fox News as a contributor The Hill’s 12:30 Report: Trump AG pick Barr grilled at hearing | Judge rules against census citizenship question | McConnell blocks second House bill to reopen government MORE (Mo.), Heidi HeitkampMary (Heidi) Kathryn HeitkampOvernight Energy: Trump taps ex-oil lobbyist Bernhardt to lead Interior | Bernhardt slams Obama officials for agency's ethics issues | Head of major green group steps down Trump picks ex-oil lobbyist David Bernhardt for Interior secretary On The Money: Shutdown Day 27 | Trump fires back at Pelosi by canceling her foreign travel | Dems blast 'petty' move | Trump also cancels delegation to Davos | House votes to disapprove of Trump lifting Russia sanction MORE (N.D.) and Jon TesterJonathan (Jon) TesterHow the border deal came together GOP braces for Trump's emergency declaration Border talks stall as another shutdown looms MORE (Mont.), have tried to show voters they are willing to work with President Trump when it benefits their state. Now, they will face cross-pressures from liberal voters and donors who will demand they take every step possible to block the court nomination.

“This becomes the defining issue in many of the closest Senate races this fall,” said Steven Law, who runs the Senate Leadership Fund, the leading Senate Republican super PAC. “For voters in deep-red states who support Trump, this will be the litmus test vote for whether you have President Trump’s back or not. Nothing else comes close.”

Asked Thursday about the coming nomination fight, several red-state Democrats demurred. Manchin refused to speculate about potential issues that would disqualify a nominee in his mind. Donnelly, who like Manchin voted to confirm Gorsuch, pledged to “look at whoever comes before us.”

Asked to comment on the open seat and the coming fight, McCaskill repeatedly declined to comment. “I’ve got nothing for you,” she said.

But McCaskill’s opponent, Missouri Attorney General Josh Hawley (R), who clerked for Chief Justice John Roberts, had plenty to say.

“The Supreme Court is the defining issue of our time. The Court makes decisions on some of the most pivotal issues in society — from the right to bear arms to religious liberty to immigration — and it is incumbent upon a United States Senator to outline what judicial philosophy they want justices to hold,” Hawley said in a statement Thursday. “Sen. McCaskill has been wrong on the last five Supreme Court nominees. Now she is ducking the question [of] what type of judge the president should nominate.”

In Indiana, where Donnelly faces former state legislator Mike Braun (R) in November, the Court fight will spur voters — specifically evangelical Christians — to the polls in levels far higher than a normal midterm, said Brian Howey, author of Howey Politics Indiana.

“Donnelly was counting on an energized [Democratic] base, but Kennedy just gassed up the evangelicals,” Howey said. 

If Trump nominates Amy Coney Barrett, a judge on the 7th Circuit Court of Appeals and a Hoosier who like Donnelly graduated from Notre Dame and is one of the names on Trump’s list of potential picks, Donnelly would face added scrutiny. “This is the proverbial rock/hard place,” Howey wrote in an email.

In recent years, as Supreme Court nomination fights have become more contentious, senators who represent states that the other party’s presidential nominee carried in the previous election have become the most likely to break with their own party to support confirmations.

In the past four Supreme Court confirmation votes — for Justices Samuel Alito, Sonia Sotomayor, Elena Kagan and Gorsuch — a combined total of 21 senators from the other party voted for confirmation. Of those, 17 represented states that the other party’s president won in the previous election. 

The only exceptions were Sens. Lamar AlexanderAndrew (Lamar) Lamar AlexanderDems ready aggressive response to Trump emergency order, as GOP splinters Congress must move forward on measure dealing with fentanyl GOP advances rules change to speed up confirmation of Trump nominees MORE (R-Tenn.) and Lindsey GrahamLindsey Olin GrahamPence met with silence after mentioning Trump in Munich speech The Memo: Trump and McCabe go to war Graham seeks new Rosenstein testimony after explosive McCabe interview MORE (R-S.C.) and former Sen. Kit Bond (R-Mo.) who voted to confirm Sotomayor. Graham also voted to confirm Kagan.

Republicans said they hoped to use the coming election to pressure Democrats into backing Trump’s pick this time, too.

“If it’s before the November election, I would expect a few Democrats to vote for the nominee,” said Sen. Roy BluntRoy Dean Blunt‘Contingency’ spending in 3B budget deal comes under fire GOP braces for Trump's emergency declaration The border deal: What made it in, what got left out MORE (R-Mo.).

Marc Short, the White House director of legislative affairs, said Thursday his office had reached out to red-state Democrats like Donnelly and Manchin before nominating Gorsuch. Asked whether the White House had begun reaching out to Democrats for Trump’s next nominee, he said: “I think it’s fair to draw that conclusion.”