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How Senate Democrats responded to Justice Kennedy’s retirement

From waiting until 2019, to ditching the list, to ducking and covering.

Ryan Koronowski Twitter
Chief Justice John Roberts (L) and Supreme Court Justices (2L-R) Anthony Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan arrive for Donald Trump's first address to a joint session of Congress on February 28, 2017. CREDIT: Photo by Jim Lo Scalzo/EPA/Pool/Anadolu Agency/Getty Images
Chief Justice John Roberts (L) and Supreme Court Justices (2L-R) Anthony Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan arrive for Donald Trump's first address to a joint session of Congress on February 28, 2017. CREDIT: Photo by Jim Lo Scalzo/EPA/Pool/Anadolu Agency/Getty Images

Justice Anthony Kennedy’s decision to retire, announced Wednesday, will push an already-conservative Supreme Court even further to the right if President Trump’s eventual nominee gets confirmed.

Already, many Democrats are chiding their Republican colleagues and Senate Majority Leader Mitch McConnell, urging them to follow the standard they themselves set in 2016 when they denied Merrick Garland’s nomination because it was an election year. Most have suggested the Senate decline to confirm any nominee until the 2018 midterm elections are over and a new Congress has been seated.

Justice Kennedy’s decision rocked those who care about abortion rights, racial discrimination, LGBTQ rights, and many other issues. Here’s how Senate Democrats are marshaling their troops in the fight for the Supreme Court.

Hold the line

Sens. Chuck Schumer (D-NY), Dick Durbin (D-IL), Kirsten Gillibrand (D-NY), Diane Feinstein (D-CA), Jeff Merkley (D-OR), Chris Murphy (D-CT), Kamala Harris (D-CA), Amy Klobuchar (D-MN), and Bill Nelson (D-FL) sounded the alarm quickly on Wednesday, arguing that no confirmation hearings should be held for any Trump nominee prior to the midterm elections.

Schumer set the pace early, stating,

Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year. Sen. McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the President’s right to nominate. Millions of people are just months away from determining the senators who should vote to confirm or reject the President’s nominee, and their voices deserve to be heard now as Leader McConnell thought they should deserve to be heard then.

Schumer also called for the entire Senate to reject any nominee who would vote to overturn Roe v. Wade.

Schumer’s fellow Democrats echoed those comments.

“With so much at stake…the U.S. Senate must be consistent and consider the president’s [Supreme Court] nominee once the new Congress is seated in January,” Durbin tweeted.

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Gillibrand agreed, tweeting, “We need to say NO hearings before the election and work our hearts out and take back the Senate.”

Independent Sen. Bernie Sanders (I-VT) said Trump should not even nominate a justice until the election.

McConnell’s hypocrisy

Some Democrats, including Sens. Tammy Duckworth (D-IL), Elizabeth Warren (D-MA), Brian Schatz (D-HI), Bob Casey (D-PA), Chris Van Hollen (D-MD), and Ron Wyden (D-OR) threw McConnell’s 2016 decision not to confirm Garland back in his face. President Obama had nominated Garland, a more moderate pick, to replace the late Justice Antonin Scalia, who died in February that year.

Ditch the list

Others, like Gillibrand and Merkley, as well as Sen. Patrick Leahy (D-VT), made an issue of Trump’s extreme right-wing list of possible Supreme Court nominees, all of whom have pledged to reverse Roe v. Wade.

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“NOBODY on the Federalist Society list of extreme right-wing jurists is an acceptable nominee,” Merkley tweeted, referring to Trump’s shortlist of candidates, referred to him by conservative legal groups.

Harris called the members of the list “complete non-starters.”

Reversing course

Some Democrats initially declined to commit to opposing hearings for the new nominee until after the election, preferring a wait-and-see approach that belies the judicial reality that currently exists. Sen. Ben Cardin (D-MD) said, “I don’t want to throw the first punch here. Let’s see what the president does.” He later tweeted that what the Republicans did to Merrick Garland was “outrageous.”

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Sen. Joe Donnelly (D-IN), up for re-election this year, similarly said he had “no litmus test” and “will judge the person on the merits of the case” as he did with his “yes” vote on Neil Gorsuch.

Sen. Sheldon Whitehouse (D-RI) issued a statement saying he would do “everything in [his] power to keep President Trump, Senator McConnell, and their dark-money backers from installing another nominee predetermined to assist the wealthy and powerful” but did not say anything about refusing to hold a hearing before the midterms.

Other senators, like Sens. Sherrod Brown (D-OH), Maria Cantwell (D-WA), Martin Heinrich (D-NM), Mazie Hirono (D-HI), Bob Menendez (D-NJ), Patty Murray (D-WA), expressed concern about the nomination but did not say they would refuse to consider a nominee this year.

Some were simply late to join their colleagues pushing back against the Republican rush to confirm a conservative justice. Sen. Richard Blumenthal (D-CT) initially said “the Senate should do nothing to artificially delay” the consideration of the next Supreme Court justice, according to MSNBC’s Garrett Haake. However, a short while later, Blumenthal joined his colleagues in refusing to consider a nominee until after the election.

“A decision of this historic magnitude requires more deliberate consideration than is possible in the politically charged months between now & the election,” he tweeted.

Republican “moderates”

Republicans in the upper chamber who seem uncomfortable with the extreme and erratic conservatism of the Trump administration nevertheless appear to be going along with the tidal forces on their own side of the aisle.

Sen. Susan Collins (R-ME), who passes for a moderate in the GOP caucus, belatedly lamented the obstruction of her own party in not holding a hearing for Merrick Garland, and said Democrats should also not call for a delay in replacing Kennedy. Sen. Ben Sasse (R-NE) called for the Senate to confirm the next Justice in August and September.

And Sen. Jeff Flake (R-AZ) said it was “tough to imagine” Trump nominating a justice similar to Kennedy.

If one of the more moderate GOP senators votes against the nominee — with Sen. John McCain (R-AZ) fighting terminal brain cancer and not attending votes — and if every Democrat votes “no,” Trump’s nomination would fail.