2 July 2018 — 0504 mdt
Justice Kennedy’s retirement is not good news
for Sen. Tester’s re-election campaign
Until last week, Republican U.S. Senate nominee Matt Rosendale didn’t have a big issue that could motivate an extraordinary turnout from his deeply conservative base. Now he does, thanks to the retirement of 81-year-old Supreme Court Justice Anthony Kennedy. With President Trump certain to nominate an Antonin Scalia genre conservative as Kennedy’s replacement, and the possibility that Trump may have an opportunity to replace 85-year-old Ruth Ginsburg, a liberal justice, movement conservatives will be motivated to preserve and expand the Republican majority in the U.S. Senate.
Kennedy’s replacement will be confirmed if the Senate’s Republicans stick together. If that happens before the election, which I think is likely, Tester’s vote will be an issue. And whether Kennedy’s replacement is confirmed before or after the election, Rosendale will argue that ousting Tester will protect Trump’s ability to get another conservative justice confirmed. To say that’s a big deal on the Biden scale understates how important installing a socially conservative and business friendly judiciary is to the Republicans and their supporters on the religious right.
It’s possible, of course, that the issue could motivate Democrats as well, offsetting gains in motivation among Republicans, but Democrats already are highly motivated and have less headroom for gains from additional motivation. Consequently, I think the fight over the Supreme Court helps Rosendale more than it helps Tester. Whether it will help Rosendale enough to defeat Tester is a different question, one to which the answer likely won’t emerge before Labor Day.
If Democrats can win a majority in the Senate, they can, if they stick together, block Trump’s nominations to the federal judiciary. But the only way they can reclaim the Supreme Court in the next two to four decades is by adding justices, which requires controlling both the White House and the Congress. Adding justices is constitutionally permissible, but politically dicey. Franklin Roosevelt attempted to add justices during his second term, but was accused of trying to pack the court and thwarted.
Justice Kennedy, incidentally, was a swing vote on a relative scale, but, as Mark Graber observes at Balkinization, a conservative Koch class Republican on an absolute scale:
What some commentators insisted was an independent streak reflected no more than Kennedy’s commitment to the Republican Party of Charles Koch, whose political and business interests gained Kennedy’s unwavering support, rather than the Republican Party of Donald Trump. The Koch’s are far more committed to busting unions and ending Obamacare than fighting the culture wars. Far more than any other justice on the Supreme Court, Kennedy implemented the Koch agenda. He would deny millions healthcare in the name of an abstracted federalism and never met a union busting tactic he could not endorse. Both Kennedy and Koch understood that professional suburban Republicans are as inclined to terminate pregnancies and to prefer romance with members of the same sex as their counterparts in the Democratic Party. As the Fortune 500 became more sympathetic to mild race based measures, so did Kennedy. The affirmative action plan Kennedy upheld in Fisher v. University of Texas (2016) increased enrollment from the same affluent suburbs that spawn Republicans most committed to the Koch business agenda.