GOP Senator: It Looks Like We'll Have a SCOTUS Vacancy This Year

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Posted: Mar 12, 2018 10:35 AM
GOP Senator: It Looks Like We'll Have a SCOTUS Vacancy This Year

A holdover from last week, which is just too juicy to pass by without comment.  This is intriguing stuff from Nevada's Dean Heller, the incumbent Senate Republican who Democrats are most bullish about replacing this November -- in a state Trump lost by nearly three points to Hillary Clinton last cycle.  Many observers are framing this comment as a mere prediction, but is it?  Here's what he told a legal group in Las Vegas on Friday:

Kennedy is going to retire around sometime early summer,” Heller predicted in Las Vegas last week, according to audio of an event he spoke at that was obtained by POLITICO. “Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated.”… “Mike Lee from Utah is probably on that short list of the next Supreme Court justice in our courts,” Heller said during the Q-and-A session with the J. Reuben Clark Law Society in Las Vegas Friday.

I can understand why people might view this as an expression of wishful thinking by a Senator who's desperate to dream up reasons why his party's base will be fired up to turn out after all, despite existing red flags. And those flags will get bigger and redder if this race goes the Dems' way tomorrow. The fact that it's close is significant unto itself: 


Back to SCOTUS. Is there reason to believe that this is something more than pure conjecture on Heller's part? There is. Justice Anthony Kennedy's departure from the Court after either last session or the current session has been the subject of heavy rumors for some time, including some whispers that I heard and relayed roughly a year ago:

I had a lengthy chat with someone with unique ties to the Supreme Court over the weekend.  Based on that discussion, I believe Cruz isn't just blowing smoke; a fresh retirement may very well be announced as soon as this coming summer.  For what it's worth, the whispers involve a (sometimes) right-leaning justice who is widely seen as the remaining "swing vote," and who will turn 81 years old in July.

I wrote that in response to public speculation from Ted Cruz that a Supreme Court opening may have been imminent early last summer. My well-placed source said that scenario was entirely possible, but added that the timetable could extend into 2018. And here we are now.  For what it's worth, I recently had a chat with two uber-connected Senate sources who stated that Kennedy -- who is now pushing 82 -- wants to be replaced by a GOP president, has been impressed with most of Trump's judicial selections thus far, and understands the dynamics and uncertainty surrounding control of the US Senate.  My understanding from those discussions is that a Kennedy retirement was probable this year, and that the narrow Republican Senate majority would act swiftly to install Kennedy's replacement prior to the midterm elections.  

Let's say that all plays out exactly as suggested.  Would GOP voters be fired up to vote if the SCOTUS fight is already over by election day?  I suspect that a high-stakes battle over the judiciary, which are very partisan and ideological exercises, would underscore the importance of the upcoming elections.  It may not be a silver bullet to counteract heavy Democratic enthusiasm, but it would re-engage the GOP base in an unique way.  Remember, passion over the future of the Court was a decisive factor in Trump's upset victory over Mrs. Clinton in 2016.  Either way, it's possible that Heller was saying something that he hopes is true.  But there are non-insubstantial reasons to believe that he was sharing an insight he's gleaned from people in the know.  Meanwhile, what about the Nevadan's comment about Utah Sen. Mike Lee being a prime candidate to replace Kennedy?  I strongly endorsed that idea in a tweet and column shortly after the last election:

Beyond those important qualities, Lee is also a prominent 'Never Trump' figure.  If Trump selected him in spite of that 'strike' against him, that statesmanlike gesture would send a powerful signal that personal pettiness won't color big presidential decisions -- and that Trump is willing to elevate someone who isn't personally indebted or beholden to him.  Such a signal would probably help soothe many people on the Left, too, even as they loudly object to many of Lee's strong conservative views.  As an added bonus, the Senate tends to confirm members of 'the club' to appointments, and Lee's Senate seat is as safe as they come.

The president ended up hitting a homerun with Neil Gorsuch, but it looks like he may be on the brink of having another crack at it, and the case for Lee remains strong.  For what it's worth, Trump has stated that a hypothetical future selection would come from the pre-election list released by his campaign -- which virtually all conservatives have applauded.  Lee is on that roster, as are a number of qualified constitutionalists.  Stay tuned; the shape of the 2018 election could shift dramatically over the course of the next three months.