WASHINGTON – One of the most powerful men in Washington – Supreme Court Justice Anthony Kennedy – will retire at the end of July. And that means five U.S. senators suddenly find themselves among the nation's most important.
Those five senators, two Republicans and three Democrats, will likely be the only people outside the Trump administration with any real leverage over whom President Trump chooses to replace Kennedy and whether the Senate confirms that nominee.
The stakes, of course, are as huge as Kennedy's legacy. In fact, Kennedy's very legacy is at stake.
Nominated to the high court by President Reagan 30 years ago, Kennedy turned out to be the key swing vote on two of the key social issues of our time: abortion and gay rights. In a 1992 case called Planned Parenthood v. Casey, Kennedy voted to uphold Roe v. Wade, the landmark ruling establishing the right to abortion. And in a series of opinions he wrote over his last 20 years on the court, Kennedy did more to further the cause of gay rights than any American ever, capping it all off with the 2015 ruling in Obergefell v. Hodges that found a constitutional right to gay marriage.
Senate Minority Leader Charles E. Schumer, a New York Democrat, and the vast majority of Democrats are expected to oppose any Trump nominee. But given the fact that Senate Majority Leader Mitch McConnell last year changed Senate rules to approve Supreme Court justices with a mere majority rather than 60 votes, Democrats alone can't stop Trump's nominee.
But in a Senate with 51 Republicans and 49 lawmakers who caucus as Democrats, Trump has little margin for error. And those five key senators – two pro-choice Republicans and three moderate Democrats facing tough re-election battles this year – could collectively force Trump to nominate someone more like Kennedy, a business-friendly libertarian with a broad view of personal freedom.
Here's a look at each of those five senators and their stake in what's likely to be a titanic Senate battle to confirm a new Supreme Court justice:
Sen. Susan Collins: An old-fashioned moderate Republican from Maine, Collins finds herself as the woman in the middle in one Senate debate after another, ranging from health care to taxes. Often she works to try to pull legislation toward the center, only to vote with her more conservative colleagues in the end. On Wednesday, though, she seemed to draw a hard line on Trump's high court nominee, telling reporters: “I view Roe v. Wade as being settled law, it's clearly precedent and I always look for judges who respect precedent.”
Sen. Lisa Murkowski: A widely respected Republican iconoclast from Alaska, Murkowski personally opposes abortion but also treats it as a matter of settled law. What's more, she seems to like how Kennedy settled it, saying on Wednesday: "I think he held the court together and did right by the Constitution." Not surprisingly, then, Murkowski vowed to be very careful in considering Kennedy's replacement. “My standards for Supreme Court nominees are extremely high," she said.
Sen. Joe Donnelly: A moderate from Indiana who supported Trump's nomination of Justice Neil Gorsuch last year, Donnelly finds himself in a tough spot. He's a Democrat running for re-election in a state that Trump won in 2016 by 19 points. That means Donnelly faces a dilemma: Does he support an uber-conservative Trump nominee in hopes that it will persuade some Republicans to vote for him, or does he oppose any Trump nominee in hopes of ginning up Democratic support in the fall? Asked about his dilemma on Wednesday, Donnelly made no commitments, saying: "As I've said before, I have no litmus tests."
Sen. Heidi Heitkamp: Another moderate, Heitkamp finds herself in the exact same situation as Donnelly. She, too, supported Gorsuch, but Trump said Wednesday: "Heidi will vote no to any pick we make to the Supreme Court." For her part, Heitkamp didn't say much of anything about Kennedy's retirement, but she's probably more likely than Donnelly to back whomever Trump picks for the high court seat, given that Trump won her state – North Dakota – by a whopping 36 points two years ago.
Sen. Joe Manchin: The most conservative Democrat in the Senate, Manchin represents West Virginia, a state that Trump won by nearly 42 points. Those two facts seem to indicate that it's unlikely that Manchin will pick a fight with the president over Kennedy's replacement. And he sure didn't sound like he was in a fighting mood Wednesday, saying, blandly: “I look forward to meeting with and evaluating the qualifications of whoever President Trump nominates to become a justice on the Supreme Court. Senators have a responsibility to do our jobs as elected officials and this includes our Constitutional obligation to advise and consent on a nominee to fill this Supreme Court vacancy.”
Congress begins a recess that will last until July 9 ... District Judge T.S. Ellis, senior judge for the U.S. District Court Eastern District of Virginia, presides at a motions hearing in the federal case against former Trump campaign manager Paul Manafort ... The Global Business Dialogue holds a discussion on tariffs ... The Institute of World Politics, the Council on Korean-U.S. Security Studies, and the Korean Defense Veterans Association hold a conference on security on the Korean peninsula.
Vox suggests term limits for Supreme Court justices ... The Washington Post tells us that a lot of Americans don't know very much about immigrants ... The New York Times says Alexandria Ocasio-Cortez, who upset Rep. Joe Crowley in a primary this week, is emerging as a political star ... The New Republic details how Big Pharma became the money-making machine that it is ... And the New Yorker says all politics isn't local anymore.
Story topics: The Briefing