Getting to “50” if Justice Kennedy retires

Yesterday, I noted the intense speculation over whether Justice Kennedy will retire at the end of this year’s Supreme Court term. Today, CNN reports that “friends and associates believe Kennedy is seriously considering retirement.” If Kennedy doesn’t step down this year, I think there’s a very good chance he will do so next year.

With the judicial filibuster now eliminated, it will only take 50 votes to confirm a successor. That’s the good news. The bad news is that, with the ideological balance of the Court at stake (it wasn’t when the Senate was considering whether to replace Justice Scalia with Neil Gorsuch), we can’t assume that the 50 vote threshold will easily be attained.

Jonathan Last at the Weekly Standard explains the problem, via an email he received from a “Republican strategist”:

I don’t think we can assume that the conference will vote in unison. Collins and Murkowski will take very hard looks at anyone who comes out of the White House and a good handicapper might very well put them in the no column for anyone with even a whiff of pro-life sentiment.

That puts us at 50, and McCain has already indicated that in the post-filibuster world it’s up to reasonable men like him to keep extremists off the Court. A look at his past District Court picks and his main judicial advisor gives a hint of how he might approach “reasonableness,” all other things being equal.

This view is a little more pessimistic than mine. Sen. Murkowski has often argued that the president should enjoy considerable deference when it comes to judicial nominees. Sen. McCain tends to defer to Sen. Lindsey Graham on judicial nominations. Graham strongly believes in deference to the president and, with one big and unfortunate exception, he has not opposed conservative nominees.

Still, Last and his source are right to worry that a strong, pro-life conservative nominee might struggle to get 50 Senate votes.

Trump has said he intends to nominate someone on his famous list. Last and his source believe this will help smooth the path for confirmation:

If Trump stays on the List he has a response to [criticism that his pick is “extreme”]. The field is not open to negotiation. He was elected to put these specific people on the Court. They have been vetted, in a sense, by the American people.

Will that argument persuade Collins to go soft on the swing seat? Probably not. But if the List isn’t open to negotiation, [a] Gang can’t show up and use its leverage to sway the open negotiations. A Gang of Three effort to supplant the List would be closer to a hostile takeover on a core base issue than anything else, and that would put someone like McCain in a much more precarious position.

I don’t think we can assume that everyone on Trump’s list could get to 50 votes. Trump’s team will need to pick carefully.

However, I’m pretty sure Justice Gorsuch could have gotten to 50 even if his confirmation would have meant a change in the Court’s ideological balance. I assume there are a number of solid conservatives on the list about whom the same can be said.


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