WASHINGTON (Reuters) - With his surprise announcement, Justice Anthony Kennedy placed the U.S. Supreme Court and contentious issues like abortion and gay rights at the forefront of November’s midterm election battle for control of the U.S. Congress.
Senate Republican leader Mitch McConnell promised a vote in the fall on a replacement for the retiring Kennedy, raising the prospect of a confirmation battle that will remind voters of what is at stake in the Nov. 6 elections, energize activists in both parties and make the Supreme Court an issue in key Senate races.
“It’s clearly going to dramatically increase the engagement on both sides,” said strategist Steve Elmendorf, a former chief of staff for House Democratic leader Richard Gephardt and deputy campaign manager for John Kerry’s 2004 presidential run.
“To me, the jury is out on which side will be motivated more,” he said.
Democrats were already counting on the grassroots energy generated by opposition to President Donald Trump to help drive their effort to pick up the 23 seats needed in the House of Representatives and two seats needed in the Senate to gain control in each chamber.
They moved quickly to remind voters what is at stake if a conservative nominee replaces Kennedy, a swing vote whose retirement could move the court to the right. Reversing or limiting the 1973 Roe vs Wade ruling that legalized abortion nationwide has been a longstanding goal of conservatives.
Democrats said that could help drive suburban and independent women to the polls and make a difference in many House battlegrounds even if those House members do not vote on court confirmations.
Kevin Griffis, a spokesman for Planned Parenthood, said the national women’s health group sees a public debate about abortion as a winner for Democrats. Women voters are already more engaged and polling finds that many are citing reproductive rights like abortion as a top issue.
“It’s going to supercharge a sentiment that is already animating the base in a truly unprecedented way,” Griffis said. “It’s not theoretical anymore, it’s a clear and present danger.”
Within hours the announcement that Kennedy would retire, Democratic politicians began sending out fund-raising emails citing the possible impact of a Trump Supreme Court appointee on abortion rights and other issues.
But Democratic strategist Rodell Mollineau said Democrats need to take a long look at how to talk to voters about the Supreme Court fight – adding it can’t just be abortion and gun control.
“As a party, we need to figure out a way to message on this that goes beyond the very important hot button issues to the others - everything from corporate fairness to the Janus decision,” he said, referring to Wednesday’s court ruling that limited public sector unions from collecting compulsory dues.
A Supreme Court confirmation battle during the heat of an election campaign also will put a handful of Democratic senators on the spot in states where Trump is particularly popular.
Ten Democratic senators are up for re-election in states Trump won in 2016, including five in deeply conservative states that Trump won by double digits - Heidi Heitkamp in North Dakota, Claire McCaskill in Missouri, Jon Tester in Montana, Joe Manchin in West Virginia and Joe Donnelly in Indiana.
“This is going to enormously complicate the re-election races of some of those Democrats in deep-red Trump states,” said Democratic strategist Chris Kofinis. “There is going to be a tremendous amount of pressure on them to support a Trump nominee.”
Incumbents like McCaskill and Manchin have remained relatively popular in their home states by touting their willingness to work with Trump when it would benefit their home states, and stand up to him when it does not.
But those Democrats are supporters of abortion rights, gay rights and other issues that will move front and center in the debate and make it hard for them to back Trump’s pick, although Manchin, Heitkamp and Donnelly supported Trump’s last Supreme Court nominee, Neil Gorsuch.
The looming fight was already moving to the top of the agenda in several races. In Missouri, McCaskill’s Republican opponent made her Supreme Court stance a litmus test for the election.
“Claire McCaskill has never once voted in line with Missouri’s wishes on a Supreme Court nominee, and that’s why she must be replaced,” her Republican opponent, Missouri Attorney General Josh Hawley, said in a statement.
There was no immediate comment from McCaskill’s office.
Joe Brettell, a Republican strategist from Texas, said the court vacancy could increase fundraising for groups that focus on social issues.
“If you’re a social conservative group, happy days are here again,” he said.
Reporting by John Whitesides and Ginger Gibson, additional reporting by Sharon Bernstein; Editing by Ross Colvin