Justice Anthony Kennedy’s retirement from the Supreme Court is going to have immediate political consequences by creating a headache for red state Senate Democrats seeking reelection.
Senate Majority Leader Mitch McConnell, R-Ky., said shortly following the retirement that he would hold a vote to confirm any President Trump nominee this fall. Though he didn’t specify whether any vote would technically take place before or after the November midterm elections, any candidate for Senate will have to take a position on the nominee.
Democrats are expected to overwhelmingly oppose any of the 25 names that Trump has promised he’d choose from, and they’ll be under pressure from their base to pull out all stops to try and block a vote.
But the political incentives of the party as a whole are much different than the pressures facing the Democratic Senators up for re-election in red states.
In 2018, there are 10 Democrats seeking re-election in states that Trump carried in 2016. Of those, five races are viewed as “tossups” by Cook Political report: Sens. Bill Nelson of Florida, Joe Donnelly in Indiana, Claire McCaskill in Missouri, Heidi Heitkamp in North Dakota, and Joe Manchin in West Virginia.
The difficulty faced by red state Democrats is that even in a more conservative states, a substantial portion of their base is going to be fiercely anti-Trump, and opposed to any of his judicial nominees. At the same time, particularly in the very red states (Missouri, North Dakota, Indiana, and West Virginia) where Trump won big, it’s going to be really difficult to vote “no” on a qualified Supreme Court nominee.
In April 2017, Donnelly, Heitkamp, and Manchin joined every Republican in voting to confirm Trump’s first Supreme Court nominee, Neil Gorsuch.
The stakes are even higher this time, however, because Gorsuch was replacing Antonin Scalia, a move that did not significantly alter the ideological balance of the court as it existed prior to Scalia’s death.
On the other hand, over the decades Kennedy has been the deciding vote on many key 5-4 decisions (including upholding Roe v Wade), so swapping him out for somebody younger and more consistently conservative could lock in a conservative majority for years to come.
