Supreme Court Justice Anthony Kennedy’s announcement that he will retire next month was likely the most consequential political decision of the year, an event that will provide President Donald Trump a second crack at appointing a justice who could serve on the court for decades to come. But Kennedy’s retirement will also have consequences beyond the judiciary: It may well shape whether Republicans will be able to retain control of the Senate.
It is terrible news for a handful of red-state Democrats, such as Indiana’s Joe Donnelly and North Dakota’s Heidi Heitkamp, for whom an election-season fight over a Supreme Court nominee will squeeze them between their Democratic base and Republican voters determined to punish senators who try to stymie the president’s judicial nominees. And it could spell disaster for Missouri’s Claire McCaskill, a Democrat who, unlike Heitkamp, Donnelly, and West Virginia’s Joe Manchin, voted against Neil Gorsuch’s confirmation last year.
During Gorsuch’s confirmation fight, McCaskill privately agonized over Democrats’ strategy to filibuster him and force Republicans to use to the so-called “nuclear option” and confirm him with a simple majority vote. Now, her opponent, Josh Hawley, has seized on the opportunity to portray her impeding a conservative Supreme Court appointment. On Thursday, he challenged her to a public debate to discuss “the issues the Court recently ruled on, future matters that may come before the body, and her explanation of why she has only supported liberal judges and opposed conservative ones.”
“The Supreme Court is the defining issue of our time,” Hawley said in a press release. “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.”
McCaskill has so far declined to comment on how she will evaluate Trump’s next SCOTUS pick, saying she’ll make that decision based on who the president selects.
The issue of Kennedy’s replacement may prove a powerful weapon for Hawley, as it gives him a reason to highlight once again McCaskill’s opposition to Gorsuch’s appointment—one of President Trump’s most lauded decisions among Republican voters. And it further provides him an opportunity to highlight his own background as a constitutional lawyer who previously clerked for Chief Justice John Roberts and has helped argue several important cases before the court.
“It’s going to be a pivotal issue in this race,” Hawley spokeswoman Kelli Ford told THE WEEKLY STANDARD. “Claire McCaskill has a lot of questions to answer on this.”
