The Slatest

What Kennedy’s Retirement Means for the Battle for the Senate

The Supreme Court.
The U.S. Supreme Court is reflected in a puddle on Wednesday.
Zach Gibson/Getty Images

Justice Anthony Kennedy’s impending retirement is likely to have far-reaching impacts on American politics for decades, chief among them a woman’s access to abortion. But his retirement will have a far more immediate effect on the battle for control of the Senate this fall. What had been shaping up as a referendum on Trump now immediately becomes one about Trump and the Supreme Court, drastically raising the stakes for an already hyperpolarized electorate.

If 2016 is any guide, that will advantage Democrats nationally, but it could also work against the party in its quest to reclaim control of the Senate. The fight for the upper chamber is, after all, playing out mostly in a handful of red states that went for Trump two years ago, not incidentally the last time he—along with the GOP establishment—was also touting his ability to appoint a conservative justice to the highest court in the land.

“We will vote to confirm Justice Kennedy’s successor this fall,” Senate Majority Leader Mitch McConnell declared shortly after the announcement. There appears to be nothing Democrats can do to stop him. Republicans hold a 51–49 advantage in the Senate, and with the judicial filibuster a thing of the past, a unified GOP caucus would be able to confirm the president’s pick along party lines. Chuck Schumer can’t do to Trump’s upcoming nominee what McConnell did to Barack Obama and Merrick Garland in 2016.

The high-profile fight will hang over every day between now and Nov. 6. It’s hard to imagine any other development this year—with the possible exception of Robert Mueller’s Russia investigation—that is more likely to divide Americans along partisan lines or motivate them to vote. Few things have unified conservatives in the past two years more than Trump’s ability to give them something they desperately want, and there’s no bigger gift than unfettered control of the Supreme Court. Liberals, still furious Garland is not on the high court, may take to the streets in protest. It’s just not clear those streets will be in the states that matter in terms of the Senate.

Democrats need to gain two seats this fall to flip control of the upper chamber. But thanks to the quirks of the electoral calendar, they currently only have three clear opportunities to add to their caucus: one each in Arizona, Tennessee, and Nevada. And they have to defend five seats in states that are seen as toss-ups: Florida, Indiana, Missouri, North Dakota, and West Virginia.

Barring a major surprise, Democrats can only afford to lose one of those eight races and still take control of the Senate next year. And while we don’t yet have state-level polling that specifically asks about the impact of a Supreme Court appointment, there’s good reason to believe voters in those states were already far more likely to side with the president and his party than voters in other parts of the country.

Trump won seven of those states two years ago—several in landslides—and his approval rating in each remains above water (the eighth: Nevada, where Trump’s net approval rating is negative-2, roughly in line with his narrow margin of defeat in the state in 2016). Democratic senators like Heidi Heitkamp in North Dakota and Joe Manchin in West Virginia have been trying to thread the needle when it comes to Trump by highlighting their areas of agreement with the president without getting too close to him, but that will become much harder now that they’ll need to go on record regarding his Supreme Court pick. McConnell will be sure to press this advantage and make the process as excruciating as possible for those red-state Democrats. Heitkamp and Manchin both voted for Neil Gorsuch last year and could feel compelled to do the same for whomever Trump nominates to replace Kennedy. Conservative evangelicals in those states, meanwhile, now have another reason to forgive Trump for his sins and to turn out in a year when parties in power typically suffer.

Two years ago, Democrats told themselves that the chance to replace the late Antonin Scalia would energize their base, and it did. But so too did it help fire up conservatives who spent their summer being warned by Fox News of all they’d lose if Hillary Clinton got the chance to replace their conservative hero with a liberal villain. Trump, meanwhile, helped allay any conservative fears that his pick for the high court wouldn’t be conservative enough by releasing a list of Federalist Society–approved candidates for the job. Already, he’s promised to pick the next justice from that same list. Democrats may be powerless to stop that nominee, but if they can find a way to retake the Senate this fall, they could use McConnell’s own gambit to stop any future nominees.