HIGH COURT BATTLE BEGINS
Feinstein, Harris want to delay hearings until after election
California Democrats are digging in for the biggest battle of their resistance so far as they prepare to fight President Trump’s attempt to rush in a conservative successor to retiring Supreme Court Justice Anthony Kennedy before the November election.
Kennedy’s surprise announcement Wednesday that he was leaving the high court sets up a high-stakes showdown over the next few months. If Trump succeeds in replacing Kennedy, the court’s swing vote, with a more staunchly conservative justice, he could shape American law for generations — potentially laying the groundwork for decisions undermining abortion rights, rejecting anti-discrimination laws and ending government race-based affirmative action.
Sen. Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, and Sen.
Kamala Harris have called for the Senate to delay any hearings on Trump’s nominee until after the November midterms, when Democrats have at least a chance to pick up enough seats to block a justice’s confirmation. Feinstein called it the “McConnell standard.”
“There should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in,” Feinstein said in a statement. “The Supreme Court has an effect on the lives of every single American, and the American people should have a say in who the next nominee will be.”
It was an argument used during the last high court vacancy, when Republican Senate leader Mitch McConnell successfully blocked the confirmation of President Barack Obama’s nominee, Merrick Garland, arguing that the February 2016 opening came too soon before a presidential election.
Harris said that the two dozen potential Supreme
Court nominees that the Trump administration had previously listed were “complete nonstarters” and “conservative ideologues instead of mainstream jurists.”
But there’s not much Democrats can do to stop a nomination if Republicans stick together. Republicans hold 51 votes in the Senate and only need 50 to confirm a justice, with Vice President Mike Pence casting the tie-breaking vote — and no filibuster is allowed
after GOP senators ended it for Supreme Court nominees last year. Moderates on both sides of the aisle will be under intense pressure.
“I don’t see how the Democrats could prevent it,” said Sam Erman, a law professor at the University of Southern California and a former clerk for Kennedy. “In the areas where Justice Kennedy was known as a moderate and a liberal, the court is going to start lurching to the right.”
On Wednesday, McConnell said he would push to confirm Trump’s nominee before November, despite the congressional midterms. “There’s no presidential election this year,” he told reporters.
Rep. Ro Khanna, D-Santa Clara, agreed with Feinstein and Harris that hearings shouldn’t be held until “at least” after the midterms.
“The Republicans stole a Supreme Court seat, and the Democrats have to fight to make sure that we don’t let them steal control of the court itself,” he said in an interview. “Women’s rights, LGBT rights, immigrant rights, it’s all at stake.”
The fight could have big implications for the November midterm elections, potentially stoking turnout on both sides. Some analysts think Republicans have the most to gain: Exit polls from 2016 showed that more Trump supporters than Hillary Clinton supporters listed the Supreme Court as their top issue.
“Conservatives are across the board extremely excited at the opportunity to finally fill this seat with somebody who’s true to the constitution and not somebody who makes up new laws,” said Harmeet Dhillon, a Republican national committeewoman for California.
LGBT and abortion rights activists prepared to organize opposition to a Trump nominee, fearing the prospect of a court far more hostile to their values. Kennedy was the court’s biggest champion of gay rights, writing landmark opinions that legalized same-sex marriage and struck down sodomy laws around the country, and he also opposed legal attacks on the Roe v. Wade decision supporting abortion rights.
“We need to ensure another of these radical extremist appointees is not appointed, and we’re going to have a much better chance of that after the midterms,” said Rick Zbur, the executive director of Equality California, in an interview.
Amy Everitt, state director of NARAL Pro-Choice California, said Kennedy’s retirement puts Roe vs. Wade in the worst danger of being overturned since it was handed down 45 years ago. “If there was ever a time for the 70 percent of Americans who support pro-choice rights to stand up and make themselves heard, this is that time,” Everitt said.
Still, Kennedy was hardly a liberal justice, and replacing him with a more hardline conservative wouldn’t swing the needle on many other of the court’s top issues. A Sacramento native and Stanford graduate, Kennedy also cast the deciding vote for conservatives in major cases guaranteeing gun rights, striking down campaign finance limits and limiting the Voting Rights Act. This week, he sided with the court’s right flank in two major 5-4 decisions upholding Trump’s travel ban policy and weakening public sector unions.
“He was a conservative justice,” Erman said, “but on this court he’s what passed for a moderate.”