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 TillisSchumer becomes new Senate majority leader Democrats see Georgia as model for success across South McConnell about to school Trump on political power for the last time 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 TrumpIran's leader vows 'revenge,' posting an image resembling Trump Former Sanders spokesperson: Biden 'backing away' from 'populist offerings' Justice Dept. to probe sudden departure of US attorney in Atlanta after Trump criticism 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 MurphySenate approves waiver for Biden's Pentagon nominee Democrats shoot down McConnell's filibuster gambit Senate confirms Biden's intel chief, giving him first Cabinet official 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 CramerGroup of GOP senators seeks to block Biden moves on Paris, Keystone McConnell faces conservative backlash over Trump criticism McConnell keeps GOP guessing on Trump impeachment 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) ManchinBipartisan Senate gang to talk with Biden aide on coronavirus relief Democrats shoot down McConnell's filibuster gambit Democrats torn on impeachment trial timing MORE (W.Va.), Joe DonnellyJoseph (Joe) Simon DonnellyBiden and Schumer face battles with left if Democrats win big Harris walks fine line on Barrett as election nears The Hill's Morning Report - Sponsored by JobsOhio - Showdown: Trump-Biden debate likely to be nasty MORE (Ind.), Claire McCaskillClaire Conner McCaskillFor Biden, a Senate trial could aid bipartisanship around COVID relief Lobbying world Former McCaskill aides launch PAC seeking to thwart Hawley MORE (Mo.), Heidi HeitkampMary (Heidi) Kathryn HeitkampHarrison seen as front-runner to take over DNC at crucial moment Biden to tap Vilsack for Agriculture secretary: reports OVERNIGHT ENERGY: EPA guidance may exempt some water polluters from Supreme Court permit mandate | Vilsack's stock rises with Team Biden | Arctic wildfires linked to warming temperatures: NOAA MORE (N.D.) and Jon TesterJonathan (Jon) TesterSenate Democrats leery of nixing filibuster 50-50 Senate opens the door to solutions outlasting Trump's moment of violence Biden VA pick faces 'steep learning curve' at massive agency 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 AlexanderLamar AlexanderCongress addressed surprise medical bills, but the issue is not resolved Trump renominates Judy Shelton in last-ditch bid to reshape Fed Senate swears-in six new lawmakers as 117th Congress convenes MORE (R-Tenn.) and Lindsey GrahamLindsey Olin GrahamTrump selects South Carolina lawyer for impeachment trial Democrats formally elect Harrison as new DNC chair McConnell proposes postponing impeachment trial until February 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 BluntBipartisan Senate gang to talk with Biden aide on coronavirus relief A Day in Photos: The Biden Inauguration GOP senator calls Biden's COVID-19 relief plan a 'non-starter' 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.”