Witcover: Inflating the midterms

Supreme Court Justice Anthony Kennedy Is Retiring Justice Kennedy wrote a letter to President Trump on Wednesday, saying he would step down on July 31. “For a member of the legal profession it is the highest of honors to serve on this Court.” Kennedy was appointed by President Reagan in 1987.

Just when you might have thought the stakes in the November midterm congressional elections could not have been higher, along comes a Supreme Court appointment to raise them even more.

Suddenly this person will be not only a referendum on the Trump presidency, but also on a range of social, cultural and economic issues already deeply dividing liberal and conservative voters.


The sudden decision of moderate Justice Anthony Kennedy to retire after more than 30 years on the highest bench hands the conservative Republican president a second selection. It will go along with his first choice of Justice Neil Gorsuch, giving the court a shot at a 5-4 majority in its next session.

The Senate Democrats who will vote to confirm or reject the choice already are reduced to pleading that the Senate majority Republicans adopt the formula used by their majority leader, Mitch McConnell, in 2016 to foil a Democratic selection by simply declining to allow a vote in an election year.

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The transparently self-serving decision is now a case of the shoe being on the other foot, with the Republicans fearful of losing their Senate majority in November unless the selection is confirmed before then, while they're certain still to be in charge.

Mr. McConnell swiftly sought to squelch the notion that he would stick to his earlier position, saying: "The Senate stands ready to fulfill its constitutional role by offering advice and consent on President Trump's nominee to fill this vacancy. We will vote to confirm Justice Kennedy's successor this fall."

A broader concern is whether the judicial branch of our three-prong system of governance, along with the executive and the legislative, will now essentially be in the hands of the Republican Party and its now-dominant figure in the Oval Office.

In President Donald Trump's first 18 months in power, the judiciary — in the various courts, in congressional judiciary committees and special counsel investigative bodies — has notably been the one bulwark challenging his primacy. In the earlier arguments over his imposition of travel bans to certain Muslim countries and on other issues of a judicial nature, lower courts often have stood up to him.

But only last week, the court, by a 5-4 vote with Justice Kennedy approving, upheld a Trump travel ban against seven countries of heavy Muslim population.

The White House observed that the decision was "a vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country."

However, a bipartisan Senate investigations committee and the Justice Department's special counsel inquiry into Russia's election meddling have continued to examine the possible role of Trump and his 2016 presidential campaign. In this contentious climate within the judicial elements of the government, the new vacancy in the Supreme Court takes on particular political significance for the November midterms.

As Democrats look to these Senate and congressional district elections in four months' time as vehicles to combat Trumpism by creating a so-called "blue wave" of anti-Trump voting, the president responds with a pitch of a "red wave" of his hardcore faithful to combat and neutralize it.

Even before Justice Kennedy announced his retirement,Mr. Trump was rallying his mostly conservative base to turn out to reinforce and enlarge the threatened Republican majorities in both the House and Senate this fall. Democratic money is being poured into likely vulnerable Republican House districts in November with the pointed objective of seizing the House majority as a possible prelude to an impeachment trial of Mr. Trump if the Robert Mueller investigation should yield the basis for obstruction of justice charges against him.

The new circumstance of a critical and bitter partisan fight over Justice Kennedy's surrendered Supreme Court seat increases the prospect of both blue and red waves of turnout, beyond making the midterms that referendum on Donald Trump himself.

That in itself should be cause to encourage devotees of our democratic process, if it were not for growing evidence that the process is being undermined by a president who in other ways shows so little respect for it.

Jules Witcover is a syndicated columnist and former long-time writer for The Baltimore Sun. His latest book is "The American Vice Presidency: From Irrelevance to Power" (Smithsonian Books). His email is