Kennedy retirement puts Schumer on the hot seat

WASHINGTON _ Supreme Court Justice Anthony Kennedy's retirement puts maximum pressure on Senate Minority Leader Charles Schumer to block a hard-right replacement, one who would tip the court's already-tenuous balance and undermine cherished precedents such as Roe v. Wade.

But wily as he may be, the Brooklyn-born leader of Senate Democrats has precious few cards to play and no margin for error in preventing President Donald Trump from seeing a lockstep-conservative win Senate confirmation.

"Schumer can beat the drums as much as he wants, but there has to be a clear path to defeating a nominee in order to be effective," said Lee Miringoff, director of the Marist Poll at Marist College in Poughkeepsie. "I don't see that right now."

After Kennedy's retirement announcement Wednesday, Trump promised he would pick a replacement from a list of 25 prospects _ a virtual Who's Who of conservatives mostly sitting on federal appeals courts and state high courts.

For Schumer, the math is none too promising. With the Senate divided 51-49 and 50 votes needed to win confirmation, Schumer will have to hold his caucus together and nip off a few Republican votes as well.

Easier said than done. Some of the 10 Democratic senators running in tight races in states won by Trump in 2016 may balk at following Schumer.

On the other hand, Republican senators such as Susan Collins of Maine and Lisa Murkowski of Alaska may not want to confirm a justice who provides the fifth vote to overturn Roe v. Wade, the 1973 landmark ruling legalizing abortion nationwide.

Under Senate rules, Vice President Mike Pence can step in and break a tie.

Sen. John McCain, R-Ariz., is ailing with brain cancer and may not be able to cast a vote.

On the Senate floor Wednesday, Schumer pressed the case for Republicans to follow the precedent they set in 2016, when Senate Majority Leader Mitch McConnell, R-Ky., stalled President Barack Obama's nomination of appeals court judge Merrick Garland until after the presidential election.

With midterm elections five months away, "anything but that would be the absolute height of hypocrisy," Schumer said.

McConnell had argued the electorate should decide which president picks the successor to Justice Antonin Scalia, who died in February 2016. Trump's 2016 victory secured the nomination for Republicans, a feather in McConnell's legislative-strategy cap.

For Schumer, the challenge presented by the Kennedy vacancy could not have come at a worse time. An increasing portion of a restless Democratic base already is howling for a brick-wall approach to any Trump nominee, with many making clear on Twitter that nothing less than Schumer's claim to Democratic leadership in the Senate is at stake.

Democrats were stunned in the New York primary Tuesday night to see veteran Rep. Joe Crowley of Queens, a potential House leader, lose to Alexandria Casio-Cortez, a 28-year-old neophyte follower of Sen. Bernie Sanders.

Whatever his ultimate strategy may be, the magnitude of filling the vacancy was not lost on Schumer.

"This is the most important Supreme Court vacancy for this country in at least a generation," Schumer said. "Nothing less than the fate of our health care system, reproductive rights for women and countless other protections for middle-class Americans are at stake."

Nevertheless, with his left flank crying out for blood and his Republican counterpart, McConnell, appearing to hold all the cards, Schumer may find his options limited.

"I don't envy Schumer," said Larry Sabato, director of the University of Virginia Center for Politics.

Kennedy's retirement was not entirely unexpected. Rumors that he was on the verge of departure after 30 years on the bench had been floating around Washington for months.

A former federal appeals court judge in California, he was President Ronald Reagan's third choice for the vacancy after his first choice, Robert Bork, went down in defeat in 1987 because of his hard-edged conservative views.

Kennedy took a while to come out from the shadows as the court's accidental justice. But in 1992, he made history as one of three Republican-appointed justices to uphold Roe v. Wade.

Year by year, as the roster of justices changed, Kennedy staked out the middle ground as a swing vote whose decision could tip the balance on crucial cases one way or the other.

He authored the landmark decision in 2015 legalizing gay marriage, writing in an oft-quoted conclusion that same-sex couples' "hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions."

"They ask for equal dignity in the eyes of the law," Kennedy wrote. "The Constitution grants them that right."

McConnell said he would move expeditiously to fill the vacancy. "We will vote to confirm Justice Kennedy's successor this fall," he said.