Now that Justice Kennedy has announced his retirement, everyone’s attention has turned to the question of who will fill his seat. Given Kennedy’s status as the swing vote (despite being quite “un-swingy” as of late), Democrats are rightly concerned that a replacement in the mold of Justice Gorsuch could shift the ideological balance of the Court for a generation. Democratic senators are already rallying to make the upcoming midterm elections about Kennedy’s replacement. There’s just one problem: they don’t have the votes.
Democrats are in the minority and it’s sheer fantasy to think that even the most “persuadable” Republican senator would be willing to hold a seat open until after the midterm elections. The best short-term hand Democrats can play is to pressure more moderate Republican senators into supporting the least-extreme potential nominees on Trump’s list.
The long-term makeup of the Court, however, still hangs in the balance this November.
That’s because whoever controls the Senate in the next two years may well determine who fills Justice Thomas’s seat. Until today, some speculated that Thomas—not Kennedy—might be next to retire. Most of the reasons for that speculation—especially the ability to step down during a Republican presidency—still hold. And while a “blue wave” would come too late in the day to prevent moderate Kennedy from being replaced with a hardline conservative, it would not come too late to prevent hardline-conservative Thomas from being replaced with a moderate. The Democrats face an uphill battle to retake the Senate, but if they succeed they could insist on amends (Merrick Garland, anyone?) or even hold the seat open in the hopes of a Democratic presidency in 2020.
The Supreme Court is in for a markedly conservative turn in the near future no matter what happens. Whether that rightward swing holds for a generation, however, rests with the voters this November.