WASHINGTON – A few hundred liberal activists gathered outside the U.S. Supreme Court Thursday morning to fire an opening shot in what they called the highest-stakes fight yet over the replacement for retiring Justice Anthony Kennedy.
The news of Kennedy’s retirement letter to President Donald Trump on Wednesday sent red alerts through networks of both liberal and conservative activists, who even before a nominee has been announced have begun to arm for the battle.
“Everything we believe in is on the line,” said Neera Tanden, president of the Center for American Progress, a public policy and advocacy group associated with the Democratic Party, at the rally outside the court. “It’s up to each and every one of us to fight back hard.”
Carrie Severino, chief counsel of the conservative Judicial Crisis Network, called the left’s alarms “overstated.” But she said she too has activated a “large-scale effort” among her coalition partners to defend Trump’s call to confirm his nominee before the Nov. 6 midterm elections.
“We already have started an ad campaign yesterday targeting some of those Democratic senators in Trump states,” said Severino, referring to the 10 Senate Democrats up for re-election in states where the majority of voters supported Trump in 2016.
The pending Kennedy vacancy sets up a struggle between the two sides to ignite the passions of their followers so they can sway senators from both parties, who will be campaigning for their votes in the midterms.
Every Supreme Court vacancy has spawned an ideological and political battle of varying intensity by outside groups since the Senate rejected President Ronald Reagan’s choice of conservative Robert Bork in 1986 after a liberal coalition mounted a campaign against him.
But this Supreme Court nomination will be different, coming just a year after Senate Majority Leader Mitch McConnell (R-Ky.) stripped Democrats of their most powerful tool -- a filibuster that requires a bipartisan 60 votes to end.
The stakes also will be higher this time because Trump is expected to choose a solid conservative to replace Kennedy, a relatively moderate justice whose swing vote helped decide cases in favor of affirmative action and gay and lesbian rights. Last year, Trump named a conservative, Neil Gorsuch, to fill the seat of the late Justice Antonin Scalia, an outspoken conservative.
And McConnell said he plans to hold a confirmation vote in the fall, which could mean it could happen just weeks or even days before the Nov. 6 election that will decide who controls the Senate, now split 51 to 49 in favor of Republicans.
“The number one tool we have is the vote,” said Kristine Lucius, vice president for policy at the massive liberal coalition called the Leadership Conference for Civil and Human Rights. “Right now the advantage we have on our side is passion.”
The deciding issues will be Trump’s plan to use the courts to kill the Affordable Care Act, better known as Obamacare, and the survival of the Roe v. Wade decision upholding the right of a woman to choose an abortion, Lucius said.
Republicans risk losing votes for the Trump nominee from Sen. Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska) over abortion rights, Lucius said.
But Curt Levey, president of the conservative Committee for Justice, said Republicans more than Democrats become energized by judicial nominations. That could close the gap in voter enthusiasm and help Republicans preserve their majority in the House and Senate, Levey said.
He said the right nominee could also win several of the red-state Democrats – three of them voted for Gorsuch in 2017. Levin also predicted Democrats would want to get the confirmation process finished to remove an issue that brings Republican voters to the polls.
“They’ll do a good job of putting up a fierce fight,” Levey said of the Senate Democrats, “but in the back of their minds they just don’t want it to drag on.”
Veteran liberal activist Nan Aron, who founded her advocacy group Alliance for Justice in 1979, however, plans to keep the pressure up.
“We anticipate that the mobilization of people from all walks of life who are concerned about the next Supreme Court nomination will be the biggest of its kind in our history,” she said.
A previous version of this story misidentified the Judicial Crisis Network.