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Retirement Of Supreme Court Justice Anthony Kennedy Sets Stage For Political Battle


Justice Anthony Kennedy's retirement now adds a Supreme Court nomination battle to the Senate agenda. The confirmation process will unfold just before the midterm elections, where congressional majorities are at stake. NPR congressional correspondent Susan Davis joins us now. Hey there.

SUSAN DAVIS, BYLINE: Hey, Mary Louise.

KELLY: So could you hear the collective gasp over there on Capitol Hill...

DAVIS: (Laughter) Yes.

KELLY: ...When news broke this afternoon?

DAVIS: Yes, absolutely. I mean, this is incredibly consequential. And it might be the one point that all senators will agree on in this upcoming confirmation fight, is just how big of a deal this vote could be. It's much different than Neil Gorsuch because Neil Gorsuch was a conservative replacing a conservative on the court, former justice Antonin Scalia. Justice Kennedy is the swing vote, and who they nominate to represent him - expected to be a conservative - could fundamentally change the makeup of the Supreme Court. And it could be, as you said, an absolutely epic battle.

KELLY: An epic battle. Now, Senate Majority Leader Mitch McConnell has announced that he's ready for this, that he wants the Senate to confirm the nominee this fall. Is that a realistic timeline?

DAVIS: Senate Democrats would like it not to be. They're already calling on the Senate to delay the vote until after the elections, citing Mitch McConnell, saying that he blocked Merrick Garland's nomination before the 2016 elections under the argument that voters should have a say. Mitch - or Minority Leader Chuck Schumer echoed that argument today on the floor. This is what he said.


CHUCK SCHUMER: 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. Anything but that would be the absolute height of hypocrisy.

DAVIS: It might be hypocritical, but it's - I think - safe to say it's not going to move Mitch McConnell. He's - very much plans on moving forward with the fight this fall. And it should be easier for Republicans to confirm him because they also changed the rules. And you cannot filibuster Supreme Court nominees anymore, so you only need 51 votes, no longer need 60.

KELLY: Well, stay with the politics here because Supreme Court battles historically have been seen as more favorable for Republicans. Their base has been more motivated to get out and vote over this than maybe Democrats or the base to the left. How might this play out?

DAVIS: I think so much of it is going to depend on who exactly it is. The White House has indicated it will be someone from an established list of about two dozen conservatives, all of which are in the mold of Neil Gorsuch. Should note that one of them is a sitting senator, Mike Lee of Utah, who did say today he'd be happy to take the job if given the nomination. But you're right. Nothing - this is good news for Republicans - right? - because this is such a base-energizing, motivating vote, especially if it's framed over the soul of the Supreme Court, right? Like, this is going to get the grassroots out.

That said, I think the issue we're going to hear a lot about in this confirmation battle is abortion rights and the future and fate of Roe v. Wade. And few issues motivate the Democratic base more right now than - in this year of the woman, than issues facing women and reproductive rights. So those two forces combined - I think - is also what's contributing to this early sense that this could just be an absolutely intense battle in the weeks and months before the midterm elections.

KELLY: Well, we look forward to your tracking it for us. That's NPR congressional correspondent Susan Davis. Thank you.

DAVIS: You're welcome. Transcript provided by NPR, Copyright NPR.

Susan Davis is a congressional correspondent for NPR and a co-host of the NPR Politics Podcast. She has covered Congress, elections, and national politics since 2002 for publications including USA TODAY, The Wall Street Journal, National Journal and Roll Call. She appears regularly on television and radio outlets to discuss congressional and national politics, and she is a contributor on PBS's Washington Week with Robert Costa. She is a graduate of American University in Washington, D.C., and a Philadelphia native.
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