Justice Anthony Kennedy’s decision to retire, announced Wednesday, will push an already-conservative Supreme Court even further to the right if President Trump’s eventual nominee gets confirmed.

Already, many Democrats are chiding their Republican colleagues and Senate Majority Leader Mitch McConnell, urging them to follow the standard they themselves set in 2016 when they denied Merrick Garland’s nomination because it was an election year. Most have suggested the Senate decline to confirm any nominee until the 2018 midterm elections are over and a new Congress has been seated.


Justice Kennedy’s decision rocked those who care about abortion rights, racial discrimination, LGBTQ rights, and many other issues. Here’s how Senate Democrats are marshaling their troops in the fight for the Supreme Court.

Hold the line

Sens. Chuck Schumer (D-NY), Dick Durbin (D-IL), Kirsten Gillibrand (D-NY), Diane Feinstein (D-CA), Jeff Merkley (D-OR), Chris Murphy (D-CT), Kamala Harris (D-CA), Amy Klobuchar (D-MN), and Bill Nelson (D-FL) sounded the alarm quickly on Wednesday, arguing that no confirmation hearings should be held for any Trump nominee prior to the midterm elections.

Schumer set the pace early, stating,

Our Republican colleagues in the Senate should follow the rule they set in 2016 not to consider a Supreme Court justice in an election year. Sen. McConnell would tell anyone who listened that the Senate had the right to advise and consent, and that was every bit as important as the President’s right to nominate. 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.

Millions of ppl are just months away from determining the senators who should vote to confirm or reject POTUS’s nominee, & their voices deserve to be heard now, as @SenateMajLdr thought they deserved to be heard then. Anything but that would be the absolute height of hypocrisy.

— Chuck Schumer (@SenSchumer) June 27, 2018

Schumer also called for the entire Senate to reject any nominee who would vote to overturn Roe v. Wade.

Schumer’s fellow Democrats echoed those comments.

“With so much at stake…the U.S. Senate must be consistent and consider the president’s [Supreme Court] nominee once the new Congress is seated in January,” Durbin tweeted.


Gillibrand agreed, tweeting, “We need to say NO hearings before the election and work our hearts out and take back the Senate.”

With so much at stake for the people of our country, the U.S. Senate must be consistent and consider the President’s #SCOTUS nominee once the new Congress is seated in January.

— Senator Dick Durbin (@SenatorDurbin) June 27, 2018

The President just said the next Supreme Court nominee WILL come from his list of 25 judges that passed his overturning Roe v. Wade litmus test. We need to say NO hearings before the election and work our hearts out and take back the Senate. https://t.co/9HzyIhLQei

— Kirsten Gillibrand (@SenGillibrand) June 27, 2018

Sen. Dianne Feinstein: pic.twitter.com/XcAQ5Mw2BX

— David Gura (@davidgura) June 27, 2018

No nominee should be considered until AFTER the election.

— Senator Jeff Merkley (@SenJeffMerkley) June 27, 2018

NEW: Sen. Chris Murphy: “If McConnell insists on starting proceedings on a radical Trump nominee, I will do everything in my power to stop him. I did not run for the Senate to grease the skids for radicals on the Supreme Court to decimate the rights of millions of Americans.” pic.twitter.com/cqQWuiIHeF

— ABC News (@ABC) June 27, 2018

Here it is, plain and simple.

McConnell set the rule.

Now, he and Senate Republicans need to follow it.

No vote on a Supreme Court nominee until after the new Congress is seated.

— Chris Murphy (@ChrisMurphyCT) June 27, 2018

If you care about reproductive choice it is time to change from a passive to an active participant in politics. Everything we hold dear in on the line this October and November. A new Supreme Court will in fact overturn Roe, and women’s rights will be set back a half a century.

— Brian Schatz (@brianschatz) June 27, 2018

With fundamental rights in the balance, the American people, who vote in fewer than 4 months, deserve to have their voices heard on this SCOTUS vacancy. We should not vote on confirmation until they have voted at the ballot box.

— Kamala Harris (@KamalaHarris) June 27, 2018

#Justice Kennedy was a swing vote in a critical case that affirmed Roe v. Wade. He was a key vote on gay marriage. He cannot be replaced by an ideologue. The American people must have a say.

— Amy Klobuchar (@amyklobuchar) June 27, 2018

Justice Kennedy was a balanced, consensus candidate nominated by President Reagan. I expect President Trump to do the same. I believe the American people should be given a chance to express their views in the upcoming election, before the Senate exercises its constitutional duty.

— Senator Bill Nelson (@SenBillNelson) June 27, 2018

Independent Sen. Bernie Sanders (I-VT) said Trump should not even nominate a justice until the election.

McConnell’s hypocrisy

Some Democrats, including Sens. Tammy Duckworth (D-IL), Elizabeth Warren (D-MA), Brian Schatz (D-HI), Bob Casey (D-PA), Chris Van Hollen (D-MD), and Ron Wyden (D-OR) threw McConnell’s 2016 decision not to confirm Garland back in his face. President Obama had nominated Garland, a more moderate pick, to replace the late Justice Antonin Scalia, who died in February that year.

The American people should have a voice in the selection of their next Supreme Court Justice. #Kennedy pic.twitter.com/TAgp0yzPeX

— Tammy Duckworth (@SenDuckworth) June 27, 2018

Mitch McConnell should follow the Mitch McConnell rule. Let the American people have a say when women’s health and equal rights are on the line.

— Elizabeth Warren (@SenWarren) June 27, 2018


— Brian Schatz (@brianschatz) June 27, 2018

The @SenateMajLdr should follow his own rule. The Senate should only consider this nomination when a new Senate is seated in January. https://t.co/O2Tz39U5eA

— Senator Bob Casey (@SenBobCasey) June 27, 2018

The McConnell Rule is clear—the American people must have a say in the upcoming election Kennedy’s seat is filled. And when the Senate considers the President’s nominee next year, we need someone who will get broad support—not someone that will put special interests first.

— Chris Van Hollen (@ChrisVanHollen) June 27, 2018

I fully expect the president’s nominee to receive the same consideration that Merrick Garland received.

— Ron Wyden (@RonWyden) June 27, 2018

Ditch the list

Others, like Gillibrand and Merkley, as well as Sen. Patrick Leahy (D-VT), made an issue of Trump’s extreme right-wing list of possible Supreme Court nominees, all of whom have pledged to reverse Roe v. Wade.


“NOBODY on the Federalist Society list of extreme right-wing jurists is an acceptable nominee,” Merkley tweeted, referring to Trump’s shortlist of candidates, referred to him by conservative legal groups.

Harris called the members of the list “complete non-starters.”

Now that there is a vacancy, after the Garland heist, the balance of the court will be tilted even more against women’s, workers’, and civil rights for decades to come if the president nominates 1 of the 25 judges that passed his litmus tests. We need to #ditchthelist now. https://t.co/HRzSFErhLQ

— Kirsten Gillibrand (@SenGillibrand) June 27, 2018

NOBODY on the Federalist Society list of extreme right-wing jurists is an acceptable nominee. #DitchTheList

— Senator Jeff Merkley (@SenJeffMerkley) June 27, 2018

We’ve already seen the President’s list of potential SCOTUS nominees. They are complete non-starters. The American people deserve a Supreme Court justice who will fight to protect their rights, not conservative ideologues. #ditchthelist

— Kamala Harris (@KamalaHarris) June 27, 2018

BREAKING: REAX Of Senator Patrick Leahy On Justice Kennedy’s Announcement Of His Decision To Retire From The Supreme Court https://t.co/9GlzoHNiv7 pic.twitter.com/M4iZa62J8E

— Sen. Patrick Leahy (@SenatorLeahy) June 27, 2018

Reversing course

Some Democrats initially declined to commit to opposing hearings for the new nominee until after the election, preferring a wait-and-see approach that belies the judicial reality that currently exists. Sen. Ben Cardin (D-MD) said, “I don’t want to throw the first punch here. Let’s see what the president does.” He later tweeted that what the Republicans did to Merrick Garland was “outrageous.”


Sen. Joe Donnelly (D-IN), up for re-election this year, similarly said he had “no litmus test” and “will judge the person on the merits of the case” as he did with his “yes” vote on Neil Gorsuch.

We were talking with @SenDonnelly as the Kennedy news broke. A bit of an understatement to say his vote will be watched like a hawk along with others like Manchin, McCaskill and Heitkamp pic.twitter.com/O7JLg5opFV

— Matt Smith (@mattsmith_news) June 27, 2018

Dem. Senator BLUMENTHAL: “The Senate should do nothing to artificially delay” consideration of next justice, but POTUS should take his time & make a centrist choice.

— Garrett Haake (@GarrettHaake) June 27, 2018

A decision of this historic magnitude requires more deliberate consideration than is possible in the politically charged months between now&the election.

— Richard Blumenthal (@SenBlumenthal) June 27, 2018

Sen. Sheldon Whitehouse (D-RI) issued a statement saying he would do “everything in [his] power to keep President Trump, Senator McConnell, and their dark-money backers from installing another nominee predetermined to assist the wealthy and powerful” but did not say anything about refusing to hold a hearing before the midterms.

Resistance in the Senate? Sen. Sheldon Witehouse (D-RI): ” I’ll do everything in my power to keep President Trump, Senator McConnell, and their dark-money backers from installing another nominee predetermined to assist the wealthy and powerful.” pic.twitter.com/nYHZeylH9b

— David Corn (@DavidCornDC) June 27, 2018

Other senators, like Sens. Sherrod Brown (D-OH), Maria Cantwell (D-WA), Martin Heinrich (D-NM), Mazie Hirono (D-HI), Bob Menendez (D-NJ), Patty Murray (D-WA), expressed concern about the nomination but did not say they would refuse to consider a nominee this year.

Some were simply late to join their colleagues pushing back against the Republican rush to confirm a conservative justice. Sen. Richard Blumenthal (D-CT) initially said “the Senate should do nothing to artificially delay” the consideration of the next Supreme Court justice, according to MSNBC’s Garrett Haake. However, a short while later, Blumenthal joined his colleagues in refusing to consider a nominee until after the election.

“A decision of this historic magnitude requires more deliberate consideration than is possible in the politically charged months between now & the election,” he tweeted.

Republican “moderates”

Republicans in the upper chamber who seem uncomfortable with the extreme and erratic conservatism of the Trump administration nevertheless appear to be going along with the tidal forces on their own side of the aisle.

Sen. Susan Collins (R-ME), who passes for a moderate in the GOP caucus, belatedly lamented the obstruction of her own party in not holding a hearing for Merrick Garland, and said Democrats should also not call for a delay in replacing Kennedy. Sen. Ben Sasse (R-NE) called for the Senate to confirm the next Justice in August and September.

And Sen. Jeff Flake (R-AZ) said it was “tough to imagine” Trump nominating a justice similar to Kennedy.

If one of the more moderate GOP senators votes against the nominee — with Sen. John McCain (R-AZ) fighting terminal brain cancer and not attending votes — and if every Democrat votes “no,” Trump’s nomination would fail.

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