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Anthony Kennedy

No vacancy (yet): Liberals, conservatives prepare to battle for control of Supreme Court

Richard Wolf
USA TODAY
Supreme Court Justice Anthony Kennedy, here arriving for the funeral of Justice Antonin Scalia in 2016, will set off a brutal campaign over his successor if he retires this spring.

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 for what likely would be the most divisive confirmation battle in decades.

Strategy sessions are being held with increasing frequency. Commercial messages are being crafted in favor and against any potential nominee. Moderate senators on both sides of the political aisle whose votes will be critical already have targets on their backs.

Unlike last year, when Justice Neil Gorsuch of Colorado was confirmed to the seat of the late Justice Antonin Scalia, a fellow conservative, any nominee chosen by President Trump would push the court further to the right. That has liberal interest groups on high alert.

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"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 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, which ran television ads in key states aimed at pressuring wavering Republicans and Democrats. "We are prepared for a vacancy, whenever that might be.”

Both sides are ready for a reason. The last justices to retire, David Souter and John Paul Stevens, announced their plans in April 2009 and 2010. Their successors, Sonia Sotomayor and Elena Kagan, were nominated in May, confirmed in August and hearing cases by October. 

The court concluded the term's oral arguments Wednesday with another high-profile case to which Kennedy likely holds the key — Trump's immigration travel ban on five predominantly Muslim countries. Kennedy's wife, Mary, watched from a special guest seat.

The preparation, however, 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. With Senate Republicans holding only a 51-49 edge and Sen. John McCain, R-Ariz., 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 calls it quits, attention swiftly will turn to those believed to be atop Trump's list of 25 potential replacements. They include federal appeals court judges Brett Kavanaugh of the District of Columbia, Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Amy Coney Barrett of Indiana and Amul Thapar of Kentucky.

"Our goal will be to humanize that person by telling their story right away," says Ron Bonjean, a former top adviser to House and Senate Republican leaders who helped with Gorsuch's confirmation. "And television advertising is going to be a big part of that.”

A conservative nominee could create what Supreme Court expert Lee Epstein at Washington University School of Law has said would be the most conservative court in 80 years. For that reason, liberals would do their best to defeat the nomination.

Says Nan Aron, president of the liberal Alliance for Justice: “It would be malpractice on our part not to be ready.”

Emphasis on social issues

President Barack Obama's nomination of federal appeals court Judge Merrick Garland was doomed in 2016.

Trump's opportunity to replace Kennedy, if it comes, would motivate Democrats in much the same way that President Obama's attempt to replace Scalia in 2016 moved Republicans. That's because Kennedy, while conservative on business cases and others, has been a liberal — and decisive — voice on social issues such as abortion and gay rights.

“It will make everything that has happened previously look small,” says Anita Dunn, a senior partner at SKDKnickerbocker, the strategic communications firm at the fulcrum of opposition to Gorsuch last year.

While that ended in defeat, liberals hope improved planning, marketing and particularly fundraising will be more effective the second 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 2016 case from Texas, and gay rights, three years after Kennedy wrote the 5-4 opinion legalizing same-sex marriage. Pro-choice Republican senators such as Susan Collins of Maine and Lisa Murkowski of Alaska would be prime targets. 

"The easiest way to lose one of them is abortion," says Curt Levey, president of the conservative Committee for Justice.

Liberals also hope to use public support for gun control, as well as the court's potential role in cases involving Trump as president, candidate or businessman, as reasons to oppose his nominee.

Their effort would be concentrated in places such as Maine, Alaska, Arizona and Tennessee, focusing on moderate as well as retiring senators. Indiana, Montana, North Dakota and West Virginia, where Democratic senators are running for re-election in Trump strongholds, also would be targets.

To succeed, liberals may need to catch up to conservatives financially. They are hoping to collect donations from groups such as George Soros's Open Society Foundations to match what conservatives expect from the likes of Charles and David Koch. But they also would tap supporters of gay rights, women's rights, environmental protection and other popular left-wing causes.

“We have fewer billionaires than they do, and we have fewer millionaires than they do," says Ian Millhiser, a legal analyst at the liberal Center for American Progress. "We have less money to go around.”

'Success follows success'

Any battle to replace Justice Anthony Kennedy will focus on key senators such as Maine's Susan Collins, here with high court nominee Neil Gorsuch before his confirmation last year.

Conservative groups had to defend Scalia's seat in 2016-17 by opposing 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.

Fortunately for Republicans, they control the White House and Senate, where Majority Leader Mitch McConnell 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. 

"Success follows success," Bonjean says. "I think donors are going to be more emboldened to provide the necessary resources for television advertising and for grass-roots.”

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.”

Other outside groups, such as the National Rifle Association, Family Research Council and Heritage Action also would be active in the effort. 

“It’s more of a federation, a loosely connected coalition," says Tony Perkins, president of the Family Research Council. "Everybody doing their own thing, but in a coordinated fashion.”

For now, both sides are waiting for Kennedy to tip his hand — and possibly tip the balance on the Supreme Court for years to come.

“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.”

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