Left, right draw battle plans in case of retirement on Supreme Court
Groups ready to spring should Kennedy quit
WASHINGTON – There is no vacancy at the Supreme Court, but liberal and conservative activists are ready to do battle over one.
The potential retirement of Justice Anthony Kennedy — the deciding vote on dozens of controversial cases over a
30-year career — has energized both sides. Strategy sessions are held with increasing frequency. Commercial messages are crafted in favor of and against any potential nominee. Moderate senators whose votes will be critical have targets on their backs.
“It’s hard to fathom something more important to our rights and freedoms, and especially at this critical time for our democracy,” says Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights, a coalition of more than
200 organizations. “I think you would see engagement larger than you’ve seen in recent memory.”
Conservative groups that came together in the $17 million campaign leading to Neil Gorsuch’s confirmation a year ago are prepared for a similar effort to unify Republicans around the next nominee. “We have a policy of always being ready,” says Carrie Severino, chief counsel at the Judicial Crisis Network.
The preparation may be for naught. Kennedy, 81, has been tight-lipped about his plans, and his clout as the court’s swing vote is at its zenith. While Senate Republicans hold only a 51-49 edge and Sen. John McCain, R-Ariz., is seriously ill with brain cancer, Kennedy — nominated to the court in 1987 by President Reagan — may decide now is not the time to drop the legal equivalent of a nuclear bomb.
If he does call it quits, a conservative nominee could create what Supreme Court expert Lee Epstein at Washington University School of Law said would be the most conservative court in 80 years. Liberals would do their best to defeat the nomination.
Nan Aron, president of the liberal Alliance for Justice, says, “It would be malpractice on our part not to be ready.”
“It will make everything that has happened previously look small,” says Anita Dunn, a senior partner at SKDKnickerbocker, the strategic communication firm at the fulcrum of opposition to Gorsuch last year.
Though that ended in defeat, liberals hope improved planning, marketing and particularly fundraising will be more effective the next time around. They plan to model the effort on the successful “Protect Our Care” campaign to stop Republicans in Congress from repealing Obamacare.
Expect to hear a lot about abortion rights, which Kennedy helped to protect in a case from Texas in 2016. Republican senators such as Susan Collins of Maine and Lisa Murkowski of Alaska, who support abortion rights, would be prime targets.
To succeed, liberals may need to catch up to conservatives financially. They hope to collect donations from groups such as George Soros’ Open Society Foundations to match what conservatives expect from the likes of Charles and David Koch. They also would tap supporters of gay rights, women’s rights, environmental protection and other left-wing causes.
Conservative groups defended the late Antonin Scalia’s Supreme Court seat in 2016-17 by opposing President Obama’s nominee, federal appeals court Judge Merrick Garland, and championing Gorsuch. This time, they would be on offense, seeking to pick up a fifth solidly conservative justice.
Republicans control the White House and Senate, where Majority Leader Mitch McConnell, R-Ky., refused to consider Garland in 2016, then cleared the way for Gorsuch by abolishing the 60-vote requirement needed to bring Supreme Court nominations to the floor.
White House counsel Don McGahn and outside adviser Leonard Leo, executive vice president of the Federalist Society, would play key roles, along with the Judicial Crisis Network and the Kochs’ grass-roots organization, fronted by Americans for Prosperity.
“If and when there is an announcement about the Supreme Court, our activists will understand the significance,” says Rebecca Coffman, spokeswoman for the Koch network, which is heavily involved in the effort to name conservatives to lower federal courts. “This is an issue that we’re going to permanently engage on, and we’re going to scale up our efforts.”
For now, both sides wait for Kennedy to tip his hand — and possibly tip the balance on the Supreme Court.
“We’re playing for a generation,” Aron says. “Whoever his successor is could well cement the right half on the court and the country for the next 40 years.”
Supreme Court swing vote Anthony Kennedy may decide now is not the time to drop the legal equivalent of a nuclear bomb.