| Rumors are swirling. Money is flying. Court watchers are dusting off rule books in search of obscure procedures and wild theories are being thrown about.
It’s been less than 48 hours since Supreme Court Justice Anthony Kennedy announced his retirement and Washington has already switched into battle mode, with the ideological leaning of the high court hanging in the balance. Who is being considered?
President Trump has said he will pick someone off the list of 25 people the White House has published online, and his spokeswoman repeated that idea on Thursday.
The Washington Post has whittled that list down to seven front-runners. The list is heavy on George W. Bush appointees. One name that the media is buzzing about: Brett Kavanaugh, a court of appeals judge for the District of Columbia Circuit and former staff secretary in the Bush White House.
Sen. Mike Lee (R-Utah) is also said to be on the rise, although a current judge seems more likely.
There’s also the possibility that Trump goes off-script. During the campaign, Trump floated his older sister, Maryanne Trump Barry, a former appeals court judge, as a potential nominee. The Associated Press reports that Leonard Leo, executive vice president of the Federalist Society, is taking a leave of absence to serve as an outside adviser to the White House selection process. The Hill: Trump, White House start outreach to key Supreme Court votes.
When will we know who the candidate is?
The calendar matters, especially in an election year. For the past three confirmed nominees, the average time from nomination to confirmation has been 73 days.
The New York Times: How long does it take to confirm a Supreme Court nominee?
A Republican plugged into the process tells us that the administration should work to ensure that the confirmation vote does not take place too close to Election Day. The source circled the third week in September as the sweet spot.
Walking that back 73 days brings us to July 10. That’s less than two weeks away and the president is scheduled to leave on a long overseas trip on that day, so we might know very soon.
Can Democrats do anything to block the confirmation?
It doesn’t look like it, although progressives are saying they’ll hold Senate Minority Leader Charles Schumer (D-N.Y.) responsible if the nominee gets through.
Senate Majority Leader Mitch McConnell’s (R-Ky.) rules prevent a Democratic filibuster. The nominee will need a simple majority. There are 51 Republicans in the Senate and Vice President Pence will be around to break a tie. On top of that, some red-state Democrats up for reelection might find it in their interests to join Republicans, as three did last year.
On Wednesday and Thursday, there was hope among liberals that Sen. Jeff Flake (R-Ariz.), a vocal Trump critic, might block the president’s nominee on the Judiciary Committee as a way to protest Trump’s tariffs policy. Flake ended that speculation. The attention has shifted now to Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), both of whom support abortion rights. The Hill: Collins, Murkowski to play pivotal role in Supreme Court abortion battle.
Sen. Brian Schatz (D-Hawaii), who has called McConnell a hypocrite for refusing to allow former President Obama’s Supreme Court nominee a vote during an election year, gets at the bottom line for Democrats:
© Twitter/Schatz The politics
This is expected to be the most expensive Supreme Court fight in history. Conservative groups have already pledged millions to pressure lawmakers, and liberal groups are certain to follow.
Red-state Senate Democrats up for reelection in states Trump carried in 2016 – there are 10 of them – will be under enormous pressure. Three of these – Sens. Heidi Heitkamp (D-N.D.), Joe Donnelly (D-Ind.) and Joe Manchin (D-W.Va.) – voted for Trump’s first pick, Justice Neil Gorsuch. Heitkamp and Donnelly met with Trump last night and said they’d consider the qualifications of his nominee. The White House said the president’s team also met with more than a dozen other senators as part of its outreach efforts “to get views and advice from both sides of the aisle.” The Hill: Supreme Court vacancy throws Senate battle into chaos.
Jonathan Turley: Justice Kennedy symbolizes our struggle to find common ground. As far as the stakes – much of the focus has been on whether the Supreme Court could reverse Roe v. Wade, although Chief Justice John Roberts has enormous respect for legal precedent. The Associated Press: A more conservative court may weaken, rather than overturn, abortion rights.
The Washington Post: Abortion foes plan a cautious approach to notion of overturning Roe.
But other issues will come up that are specific to Trump’s eventual choice for the lifetime appointment. Liberals see an opening here. Speaking on MSNBC, Democratic strategist and former Supreme Court clerk Ron Klain called on Democrats to view former Judge Robert Bork’s nomination as a model. Many Republicans believe Bork’s record was distorted during the confirmation process, and that Democrats sunk his nomination based on ideological differences, not qualifications. What is Trump looking for? According to his aides, “tremendous intellect, judicial temperament and impeccable qualifications.” What are opponents looking for? Any vulnerability that might give even a few GOP senators serious pause.
One final note – a word used by pundits and even a pollster to describe the national mood is “unraveling.” It’s a bookend with “chaos,” and was used this week by people who are alarmed at the idea of a conservative majority on the Supreme Court. The debate is just three days old. Lots more to come. | 
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