House Republicans said Wednesday that Supreme Court Justice Anthony Kennedy’s retirement affords President Donald Trump the opportunity to cement the high court’s conservative majority, with far-reaching implications.
“This is bigger than perhaps it even seems at this moment. He has been the swing vote on the court for a number of important issues,” said Rep. Bradley Byrne, R-Ala.
President Trump has already announced he intends to select Kennedy’s replacement quickly from a list of potential justices he released early in his presidency. His first court nominee, Justice Neil Gorsuch, also came from that list.
Senate Majority Leader Mitch McConnell, R-Ky., said Wednesday whoever Trump nominates should be confirmed before the midterm elections. Many Democrats promptly complained that McConnell refused a vote on President Barack Obama’s nominee to fill late Justice Antonin Scalia’s seat in 2016, claiming it was too close to an election.
"Our Republican colleagues in the Senate should follow the rule they set in 2016 — not to consider a Supreme Court justice in an election year," Senate Minority Leader Chuck Schumer, D-N.Y., said in a floor speech, but with the filibuster eliminated for Supreme Court nominees, it was unlikely Democrats could do anything to prevent consideration of Trump’s pick.
Rep. Chuck Fleischmann, R-Tenn., said he expects the Senate to thoroughly vet the nominee but to do so as soon as it can.
“I do think we need to get the new justice on the court. It’s a nine-person Supreme Court, we want to make sure that we fill that vacancy because the high court is very busy and is going to remain busy into the next session,” he said.
The Supreme Court issued multiple high profile opinions this week that were decided by 5-4 margins with Justice Kennedy siding with the majority, including one that upheld President Trump’s travel ban on several Muslim-majority countries and another seen as a major blow to public sector labor unions.
“We just saw this week the Supreme Court ruling some very key cases,” Fleischmann said. “Theses are close votes, these are 5-4 votes, and this next justice ought to be a conservative.”
“What I mean by that,” he added, “is a judge who will interpret the law the way the founding fathers wanted them to do it, not in a way that some of the more activist judges have gone out and basically expanded in their own view what the law ought to be.”
Justice Kennedy recently voted with the majority in favor of a baker who refused to make a cake for a same-sex wedding, citing his religious beliefs. A narrow ruling in that case left broader issues of refusing service to same-sex couples unresolved, but the court granted a new hearing for a florist in a similar situation earlier this week.
“I firmly believe that a new conservative justice replacing Kennedy is going to take the follow-up cases to that case in a different direction than they would have gone under Justice Kennedy,” Byrne said.
Although Byrne anticipated Kennedy’s replacement will have a significant impact on future religious freedom cases, he stressed that he does not expect the new justice to help overturn at least two historic rulings.
“I do not see a reversal of the decision on gay marriage,” he said. “What I do think you’ll see is a court with a new conservative justice on it is going to recognize more free exercise of religion rights in the context of certain gay rights issues, so I think it’s a huge development there. But I don’t see that justice or this Supreme Court reversing that decision that’s already been rendered, nor do I see that Supreme Court reversing Roe v. Wade.”
Democrats began mobilizing Wednesday around the prospect of Roe being tossed out, potentially allowing states to outlaw abortion.
“The President just said the next Supreme Court nominee WILL come from his list of 25 judges that passed his overturning Roe v. Wade litmus test,” tweeted Sen. Kirsten Gillibrand, D-N.Y. “We need to say NO hearings before the election and work our hearts out and take back the Senate.”
For both sides, the news of Kennedy’s retirement raised the already high stakes of this November’s election, which will decide which party controls the Senate. In the meantime, Republicans seemed confident in the president’s ability to seat a reliably conservative justice.
“I think his last pick was right on the money…,” said Rep. John Curtis, R-Utah. “If he can find that caliber of individual again, you’ll see him appointed and I think he’ll serve well.”