In this March 23, 2015, file photo, Supreme Court Associate Justice Anthony Kennedy testifies before a House Committee on Appropriations Subcommittee on Financial Services hearing on Capitol Hill in Washington.

(AP Photo/Manuel Balce Ceneta, File)

Kennedy's Retirement Roils Election-Year Landscape

"There's no piece of legislation, no executive order, no Supreme Court decision that would have created the level of motivation that an empty seat does."

June 28, 2018 - 12:27 pm
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By STEVE PEOPLES and BILL BARROW, Associated Press

NEW YORK (AP) — Nothing could have shifted the political landscape more than this.

Supreme Court Justice Anthony Kennedy's retirement and President Donald Trump's pledge to move quickly to fill the seat guarantee a searing summer of charged rhetoric that could touch on virtually every hot-button social and cultural issue in American politics.

The news was especially deflating for Democrats, who felt immediate flashbacks to the 2016 presidential election, when the tantalizing prospect of an open Supreme Court seat spurred some GOP voters to back Trump even if they found him personally objectionable.

It was a dramatic shift for Democrats who had been optimistic about seizing the House majority, if not the Senate. Some of the most dejected responded on social media with obscenities. Others teased a political strategy by warning of severe consequences for health care and abortion rights should Trump have his way.

But for Republicans who have feared a massive enthusiasm advantage for Democrats, the sudden vacancy that could shape the court's direction for a generation was nothing short of a gift from the political gods. In addition to a massive dose of energy, the Supreme Court fight is expected to trigger a flood of new campaign cash that will strengthen the GOP's midterm efforts.

"It's a game changer," said Republican strategist Chris Wilson. "There's no piece of legislation, no executive order, no Supreme Court decision that would have created the level of motivation that an empty seat does."

Indeed, a similar scenario played out in 2016 and, two years later, the strategy is proving successful for Republicans. Trump's first pick for the Supreme Court, Neil Gorsuch, helped uphold the president's ban on travel from several mostly Muslim countries this week. Gorsuch and his fellow conservatives delivered on another GOP priority Wednesday in a decision that will deal a serious financial blow to Democratic-leaning organized labor.

Trump now has a chance to nominate a second justice who could cement the court's conservative bend and deliver Republican victories for years to come.

The political focus shifts immediately to the Senate, where 10 Democrats running for re-election in states Trump carried in 2016 will soon have to weigh in on the vacancy.

Three of the most vulnerable Senate Democrats — North Dakota's Heidi Heitkamp, West Virginia's Joe Manchin and Indiana's Joe Donnelly — voted in favor of Gorsuch last year. They will face enormous pressure from both parties as they grapple with the president's next pick.

And Republicans, who have been struggling to energize their voters, now get a powerful persuader.

"It's going to be a huge plus for Republican candidates in terms of answering that easy but sometimes difficult question: Why me? Why now?" said Republican strategist Andrea Bozek, who is working with several Republican candidates this cycle. "It makes the case very real on why we need to maintain and grow the Republican majority in the Senate."

Added Republican pollster Frank Luntz: "Now all the marbles are on the Senate."

The conservative Koch network's political arm, Americans For Prosperity, promised to invest more than $1 million on a broader campaign to support Trump's pick on the ground in key states, according to spokesman James Davis.

"Obviously, we're looking at the nominee first. We want another nominee who's principled, who's going to follow the rule of law similar to Justice Gorsuch," Davis said. "Then we'll launch immediately."

There was immediate pressure on Senate Minority Leader Chuck Schumer of New York to use all the tools at his disposal to stop Trump from filling a vacancy. But with the elimination of the filibuster on Supreme Court nominees, he doesn't have much leverage beyond rhetoric and unifying his party, forcing Senate Majority Leader Mitch McConnell to supply the votes.

McConnell refused to even grant a committee hearing to President Barack Obama's Supreme Court nominee, Merrick Garland, arguing that voters should decide the issue. Democrats insisted that McConnell follow the same approach now.

"Mitch McConnell should follow the Mitch McConnell rule. Let the American people have a say when women's health and equal rights are on the line," Massachusetts Sen. Elizabeth Warren, a 2020 Democratic presidential prospect, tweeted.

Another ambitious Democrat, California Sen. Kamala Harris, outlined her message with a simple question: "When our nation's values and ideals are under attack — do we retreat or do we fight? I say, we fight," she tweeted.

The issue was already reshaping the nation's top Senate contests.

Missouri Republican Senate hopeful Josh Hawley, the state attorney general, seized on his Democratic opponent's vote against Gorsuch last year.

"Claire McCaskill has never once voted in line with Missouri's wishes on a Supreme Court nominee, and that's why she must be replaced," Hawley charged.

In Nevada, Democratic Rep. Jacky Rosen tried to go on the offensive against one of the country's few vulnerable GOP senators: "Let's repeal and replace Senator Heller and protect the future of the Supreme Court," she tweeted.

Dean Heller sent out a fundraising appeal roughly an hour after the news broke, declaring that he alone could stop Democrats from taking the Senate and determining the next Supreme Court justice.

In Tennessee, Democratic Senate nominee Phil Bredesen immediately embraced the opportunity as well, arguing that he'd be an independent voice amid partisan rancor.

"Not long ago, Senate confirmation was free of openly partisan politics," Bredesen says in a 30-second ad that his campaign says was already cut in anticipation of Kennedy's retirement.

His Republican opponent, Rep. Marsha Blackburn, responded immediately to the vacancy, charging that Bredesen would side with "Chuck Schumer who will attempt to block the President's pick and weaken the court."

And in Texas, Republican Sen. Ted Cruz's campaign had already drafted a fundraising letter about the vacancy even before Kennedy's retirement was official.

"If we lose the Senate, we will lose the opportunity to approve the nominations of strong Constitutionalists to the Supreme Court and other important positions," Cruz wrote. "These are the stakes."

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Barrow reported from Atlanta. AP writers Thomas Beaumont in Des Moines, Iowa, and Michelle Price in Las Vegas contributed to this report.