
Cartoon – July 4th Fireworks









Justice Anthony M. Kennedy’s retirement announcement was less than a day old when liberal activists rallied on the steps of the Supreme Court on Thursday, invoking the names of two Republican senators who, they believe, hold the future of Roe v. Wade in their hands.
“Remember Susan Collins! Remember Lisa Murkowski!” Neera Tanden, president of the liberal Center for American Progress, exhorted the crowd. “If they claim to be pro-choice, choice is on the line with this decision.”
Ms. Collins, of Maine, and Ms. Murkowski, of Alaska, are powerful — and rare — creatures in Washington: moderate Republican women who favor abortion rights and are unafraid to break with their party. Their no votes helped sink the Republican repeal of the Affordable Care Act last year; both objected vociferously to a provision that would have stripped funding from Planned Parenthood Federation of America, the women’s health and reproductive rights organization.
Now, with President Trump’s pledge to nominate a “pro-life” jurist to replace the retiring Justice Kennedy, the senators are under pressure as never before. Much like Justice Kennedy, they are swing votes — not in a court case, but in a coming confirmation battle that will shape the Supreme Court, and American jurisprudence, for generations to come.
The math in the Senate tells the tale. With Senator John McCain, Republican of Arizona, undergoing cancer treatment, Republicans have the slimmest of majorities: 50-49. If every Democrat votes against a Trump nominee, it would take just one Republican defector to block confirmation. And with a filibuster no longer an option, Democrats are powerless to block a nominee on their own.
So within minutes of Justice Kennedy’s announcement on Wednesday, Democrats and their allies began looking toward Ms. Collins and Ms. Murkowski.
So did the White House. Ms. Collins and Ms. Murkowski were among a bipartisan group of six senators who met separately with Mr. Trump on Thursday night to talk about the court vacancy. Earlier Thursday, Ms. Collins said in an interview that she had taken a call from the White House counsel, Donald F. McGahn II, and that she urged him to look beyond the list of deeply conservative jurists that Mr. Trump has promised to pick from — a significant request, given that Senator Chuck Schumer of New York, the Democratic leader, has declared that Democrats will not back any nominee on that roster.
Mr. Schumer has also made clear that he will make the fate of Roe v. Wade, the 1973 landmark decision that established a constitutional right to abortion, the centerpiece of Democrats’ strategy to block any nominee they consider extreme. Ms. Collins, choosing her words carefully, suggested Roe would figure into her decision-making.
“I believe in precedent,” she said. “In my judgment, Roe v. Wade is settled law, and while I recognize that it is inappropriate to ask a nominee how he or she would rule in any future case, I would certainly ask what their view is on the role of precedent and whether they considered Roe v. Wade to be settled law.”
Both senators are well aware that, no matter how they vote, one side is going to be unhappy. Ms. Murkowski acknowledged feeling the weight of the moment.
“There’s pressure because of the gravity of such a nomination,” Ms. Murkowski told Politico. “I am not going to suggest that my opportunity as a senator in the advise-and-consent process is somehow or other short-cutted just because this is a Republican president and I’m a Republican.”
Senator Chris Murphy, Democrat of Connecticut, framed the situation for Ms. Murkowski and Ms. Collins this way: “This is a legacy vote. Very few people in the Senate, even those who’ve been here for a long time, will cast a more important vote than this.”
Liberal activists and Mr. Schumer have demanded that a nominee not be confirmed until after the November election, but Senator Mitch McConnell, the Republican leader, has promised a speedy process, with a confirmation vote by fall.
For Democrats, unified opposition will be difficult — especially in an election year when 10 Senate Democrats are up for re-election in states won by Mr. Trump. Three of those Democrats — Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia — voted last year to confirm Justice Neil M. Gorsuch. So did Ms. Collins and Ms. Murkowski.
Since then, Justice Gorsuch has emerged as a consistent vote in the high court’s conservative bloc.
To say that tensions are high in the Senate around Supreme Court nominees would be an understatement. The wounds of 2016 remain raw and open. Democrats are still angry that Republicans, led by Mr. McConnell, blockaded President Barack Obama’s nominee, Judge Merrick B. Garland of the Federal Appeals Court here, by denying him a hearing — and giving Mr. Trump opportunity to put Justice Gorsuch on the court.
Ms. Murkowski sided with leadership then. But Ms. Collins broke ranks and called for Judge Garland to have a hearing — a moment she recalled on Thursday. “This is not a pleasant situation,” she said, referring to the Kennedy vacancy. “But it’s not strange to me.”
Neither Ms. Murkowski nor Ms. Collins face re-election this year, which gives them a measure of freedom in how they vote. Still, they are likely to face pressure back home. Eliza Townsend, executive director of the Maine Women’s Lobby, a women’s rights group, said her organization intended to step up its contacts with Ms. Collins.
“Maine people understand that this is for all the marbles,” she said. “This is a critical, critical moment.”
Both Ms. Murkowski and Ms. Collins have long been independent figures in the Senate. In 2010, when Ms. Murkowski ran for re-election, she lost in a primary to a Tea Party Republican. Instead of bowing out, she ran a write-in campaign — posing a challenge to voters who needed to know how to spell “Murkowski” — and won. The victory effectively freed her from party constraints.
Ms. Collins has a reputation for working across the aisle. In 2013, she led an effort among Senate women, including Ms. Murkowski, to put an end to that year’s government shutdown. As co-chairwoman of a bipartisan group called the “Common Sense Coalition,” she helped end this year’s shutdown as well.
Last week, she helped put together two ideological opposites, Senator Ted Cruz, Republican of Texas, and Senator Dianne Feinstein, Democrat of California, to work on immigration legislation.
Conservative advocates said Thursday that they were confident the two would confirm the president’s pick.
“We’ve seen from their statements that they both are very concerned about a judge that’s going to be fair, impartial and abide by the rule of law, and I think that’s exactly what we’re going to get: someone they both are just not comfortable with but very happy to vote for,” said Carrie Severino, chief counsel and policy director of Judicial Crisis Network, a conservative advocacy group.
With the Senate gone for its July 4 recess, Ms. Collins and Ms. Murkowski may get a little break. But once Mr. Trump names a nominee, the pressure will rise.
“These are two women who have been very clear, over many decades, that our constitutional right that protects women’s most important right of privacy — their right to reproductive rights — is important to them,” said Judith L. Lichtman, former president of the National Partnership for Women and Families, and a longtime Washington advocate for women’s rights. “And now they have a chance to prove it.”
The Democrats’ hopes of sinking President Trump’s upcoming nominee for the Supreme Court hinge on a pair of Republican women who have broken with their party over abortion and dismantling the Affordable Care Act.
With the GOP holding a 51-to-49 majority in the Senate, the votes of Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) will almost certainly be needed for Trump’s eventual nominee to be confirmed, making them the most influential senators in the battle to replace Justice Anthony M. Kennedy, who announced Wednesday that he is retiring.
Both will be the target of intense lobbying as Trump is expected to put forward a pick who would shift the court rightward, putting in play issues such as abortion, gay rights and the government’s role in health care.
The two senators are trying to play down their influence as the frenzy over the Supreme Court opening grows and the pressure on them builds.
“It’s been kind of interesting in this firestorm. Afterward, everyone is focused on Lisa and Susan,” Murkowski said in an interview Thursday. “If I were John or Jerry or Bill, I’d say, ‘Wait a minute. How come I’m not being viewed as an important voice in this process?’ ”
But Murkowski and Collins are the rare elected Republicans in Washington who support abortion rights and voted against repealing the Obama-era Affordable Care Act — issues Democrats are using to frame the battle over the Supreme Court nominee.
“A woman’s right to control her body is at stake with this next nominee,” said Sen. Dianne Feinstein (Calif.), who as the top Democrat on the Judiciary Committee will lead her party’s scrutiny of Trump’s nominee. Asked how much Collins and Murkowski should weigh abortion in their decision, Feinstein said, “That’s up to them. But for me, it’s huge. Because I know what life was like before and most young women don’t.”
Murkowski called the future of Roe v. Wade — the 1973 decision that legalized abortion nationwide — a “significant factor,” but she stressed that in no way will that landmark ruling be the sole factor for her.
“And I don’t think it should be the only factor for anybody,” Murkowski said. “It’s not as if those are the only matters that come before the Supreme Court.”
Collins said Thursday that although she wouldn’t ask Trump’s pick how he or she would rule on specific issues, she always presses judicial nominees about their views on legal precedent.
“I do get a sense from them on whether or not they respect precedent,” Collins said. “And from my perspective, Roe v. Wade is an important precedent and it is settled law.”
Republicans, well aware that Democrats will try to pin down Trump’s pick on contentious issues, are already making the case that any nominee should abide by the standard Justice Ruth Bader Ginsburg used during her 1993 hearings: To give “no hints, no forecasts, no previews” on how they might rule.
“I think the only thing that’s going to influence those two very good senators is . . . how they perform in the hearing,” said Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa). “Because Collins and Murkowski would obviously respect the Ginsburg rule.”
The scrutiny the two senators face is far from unfamiliar. Collins is one of a dwindling core of moderate Republicans who have been willing to defect from the party on contentious issues, including abortion and guns. And like Collins, Murkowski has an independent streak — one that helped her win reelection in 2010 through a write-in campaign after she lost in the GOP primary. Both senators also opposed the nomination of Betsy DeVos as education secretary, forcing Vice President Pence to cast the tie-breaking vote to confirm her.
But they have been consistent “yes” votes on Trump’s picks for federal courts.
The two senators have voted on five of the most recent Supreme Court justices, with Collins serving as a reliable “yes” while Murkowski rejected both of President Barack Obama’s nominees: Elena Kagan and Sonia Sotomayor.
Of the 25 names Trump has listed as potential justices, 17 have been confirmed by the Senate for federal judgeships, while two are pending. Murkowski has supported all of the candidates nominated during her time in the Senate while Collins voted against one: Judge William Pryor of the Court of Appeals for the 11th Circuit.
Groups that favor abortion rights have begun flooding Senate offices with phone calls and are widening the universe of targeted Republicans beyond Collins and Murkowski to Sen. Dean Heller (Nev.), the most politically vulnerable Senate Republican on the ballot this fall.
Ilyse Hogue, the president of NARAL Pro-Choice America, said calls from her group’s activists to Senate offices in the 24 hours after Kennedy’s retirement announcement Wednesday were three times the volume of the calls that resulted immediately after Neil M. Gorsuch was nominated in January 2017 to replace the late Antonin Scalia.
“Sens. Murkowski and Collins have already laid down the marker saying that they stand by Roe, they believe in legal access to abortion,” Hogue said. “It’s about upholding their word through this vote, and we’re going to make sure that the public support is there for them in their states and that there will be a lot of frustration and anger if they don’t.”
Public polling indicates a nation split over abortion. The most recent nonpartisan survey to ask whether the procedure should be legal in all or most cases is a Public Religion Research Institute poll in March, which found 54 percent of respondents saying that abortion should be legal in most or all cases vs. 43 percent saying it should be illegal in most or all cases.
Collins and Murkowski — as well as a small cadre of moderate Democratic senators — are likely to receive heavy attention from Trump administration officials as the White House tries to secure support for the president’s yet-to-be-named nominee.
The two Republicans, as well as Grassley and the three Democrats who voted in favor of Gorsuch, met with Trump on Wednesday evening at the White House to discuss the vacancy, White House press secretary Sarah Huckabee Sanders said.
Murkowski already had one suggestion for the administration: Consider people who may not be on the shortlist crafted during Trump’s presidential campaign with heavy input from the Federalist Society. She said she wants a chance to weigh in on potential candidates.
“I don’t know how we got so wedded to that list. That was not created by senators here,” she said.
Marc Short, the White House’s director of legislative affairs, noted that he, Pence and White House counsel Donald McGahn had met with Collins, Murkowski and swing Democrats such as Sens. Joe Donnelly (Ind.) and Joe Manchin III (W.Va.) as they considered Gorsuch last year.
“I think that you will see continued White House outreach,” Short said. “Stay tuned on the specifics.”
https://khn.org/news/podcast-khns-what-the-health-justice-kennedy-retires-now-what/

The retirement of Supreme Court Justice Anthony Kennedy has triggered a political earthquake in Washington, as Republicans see a chance to cement a conservative majority and Democrats fear a potential overturn of abortion rights and anti-discrimination laws, and even — possibly — challenges to the Affordable Care Act. Kennedy has been the deciding vote in dozens of cases over his long career on the high court, mostly siding with conservatives but crossing ideological lines often enough that liberals see him as the last bulwark against challenges from the right to many policies.
The Supreme Court made other health news this week, ruling that California cannot require anti-abortion “crisis pregnancy centers” to post signs informing women of their right to an abortion and telling them that financial help is available.
And this is a special week for us. It’s our first anniversary. This week’s panelists for KHN’s “What the Health?” are Julie Rovner of Kaiser Health News, Rebecca Adams of CQ Roll Call, Alice Ollstein of Talking Points Memo and Margot Sanger-Katz of The New York Times.
Among the takeaways from this week’s podcast: