Judge's retirement heats up US midterm election battle

Choice of replacement for Anthony Kennedy in the Supreme Court brings key issues such as abortion rights to the fore

US President Donald Trump and Supreme Court Justice Anthony Kennedy at the swearing in of Justice Neil Gorsuch at the White House on April 10, 2017. Carolyn Kaster / AP Photo  

The retirement of US Supreme Court Justice Anthony Kennedy is expected to inflame partisan tensions and shape the outcome of the midterm elections as Republicans and Democrats battle over President Donald Trump's nominee to replace him.

All sides mobilised quickly after Mr Kennedy, 81, a singular voice whose votes have decided issues on abortion, affirmative action, gay rights, guns, campaign finance and voting rights, sent shockwaves through Washington on Wednesday by announcing his retirement plans after serving for 30 years in the top court.

Mr Trump said he would start the effort to replace Mr Kennedy "immediately" and would pick from a list of 25 names that he updated last year. Senate majority leader Mitch McConnell declared that the Senate "will vote to confirm Justice Kennedy's successor this fall", while Democrats are calling for the vote to be held after the November elections, which they hope will give them a majority in the House and Senate.

With Mr Kennedy retiring on July 31, Republicans have a longed-for opportunity to tip the balance of the court. It already has four justices chosen by Democratic presidents and four picked by Republicans, so Mr Trump's nominee could shift the ideological balance toward conservatives for years to come.

Republicans also have a chance to make judicial nominees a top campaign issue, which could help motivate conservatives and evangelicals to vote in November. The playbook worked in 2016, when Republicans rallied around Mr McConnell's successful block of then-president Barack Obama's nominee to the court, Merrick Garland.

If Republicans unite behind Mr Trump's selection, there is little that Democrats can do to stop it. Republicans changed the Senate rules last year so that Supreme Court nominees cannot be filibustered, meaning only 51 votes will be required to confirm.

Last year, Mr Trump's first nominee to the court, Neil Gorsuch, was confirmed 54-45, with three Democrats voting in favour. Those Democrats — senators Joe Manchin of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota — are facing difficult re-election races and could find it difficult to oppose the president's second pick.

But while Republicans are aiming for speedy action, Democrats quickly argued that any decision should be put on hold until after midterm elections, citing Mr McConnell's 2016 moves. Senate minority leader Chuck Schumer has said it would be the "height of hypocrisy" to vote sooner.

He said the voices of millions of Americans heading to the polls this fall "deserve to be heard".

Mr McConnell refused to consider Mr Garland because it was a presidential election year. He said the seat should be left open for the next president to fill.

Chuck Grassley, the chairman of the senate judiciary committee, told reporters that the 2016 delay on Supreme Court confirmations only applied to presidential election years. He noted that Justice Elena Kagan was confirmed in 2010, a midterm election year.

Another flashpoint in the court debate will be abortion rights, which puts a spotlight on key female Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska. Both have supported abortion access. The abortion issue could also prove difficult for Heller of Nevada, the most endangered Senate Republican running for re-election this fall, whose views have shifted against abortion rights.

Mr Schumer said the Senate should reject "on a bipartisan basis any justice who would overturn Roe v Wade or undermine key healthcare protections".

Speaking at the White House, Mr Trump deflected a question on whether he should wait until after the midterm elections to announce a successor to Mr Kennedy, saying he had not "really thought about that. I think you want to go as quickly as possible".

The president stressed his confidence in the picks on his list, saying: "You see the kind of quality we're looking at when you look at that list."

Some possible nominees include Thomas Hardiman, who serves alongside Mr Trump's sister on the Philadelphia-based 3rd US Circuit Court of Appeals, and Raymond Kethledge, a federal appeals court judge who clerked for Mr Kennedy. Also of interest are Amul Thapar, a federal appeals court judge from Kentucky who is close to Mr McConnell; Brett Kavanaugh, a former clerk for Mr Kennedy who serves on the federal appeals court in Washington, DC; and Amy Coney Barrett, who serves on the federal appeals court in Chicago.

Among Mr Trump's counsellors is Leonard Leo, who is taking a leave of absence as executive vice president of the Federalist Society to serve as an outside adviser to the process. Mr Leo said on Wednesday that it was important to first focus on Mr Kennedy's legacy and demonstrate appreciation. From there, he said, the "White House will begin to winnow the president's list to a manageable short list".

"The president has been very clear over and over what his standards are," Mr Leo said.

Senators are bracing for the tough days ahead.

Republican Ben Sasse of Nebraska, a member of the judiciary committee, bluntly talked of the "blood sport" likely to be triggered by the nomination fight.

"Americans ought to aim higher," he said.