Democrats immediately responded to Supreme Court Justice Anthony Kennedy’s retirement by calling on Republicans to delay a confirmation vote until after the midterm election -- but the strategy runs the risk of backfiring if the GOP emerges stronger after November.
For now, Democrats are clearly betting that they can use the high court vacancy to turn out voters, by warning that President Trump is poised to solidify a conservative majority on the bench with the Republican Senate's consent.
Party leaders demanded that voters first be allowed to render their verdict in November, before a nominee is considered. They cited Senate Majority Leader Mitch McConnell’s refusal to consider then-President Barack Obama’s nominee Merrick Garland in 2016 due to the election.
“Our Republican colleagues in the Senate should follow the rule they set in 2016, not to consider a Supreme Court justice in an election year,” Senate Minority Leader Chuck Schumer, D-N.Y., said on the Senate floor.
“Anything but that would be the absolute height of hypocrisy,” he said.
"With fundamental rights in the balance, the American people, who vote in fewer than 4 months, deserve to have their voices heard on this SCOTUS vacancy," tweeted Sen. Kamala Harris, D-Calif. "We should not vote on confirmation until they have voted at the ballot box."
Republicans responded that 2018 is different because it is a midterm, as opposed to a presidential election. McConnell, for now, has shrugged off the Democratic demands and penciled in a tentative vote for the fall.
But Democrats are also rolling the dice, as McConnell did in 2016 in betting that underdog Donald Trump would win the election and allow the Senate to trade moderate pick Garland for a conservative. Democrats are making a similar gamble, hoping they will emerge stronger from the midterms.
That's no guarantee.
While Democrats are widely seen as having a good chance at flipping the House, the Senate is a different game.
While Republicans currently hold a tight margin of 51-49, many of the seats up for re-election in November are Democrat-held seats in states that Trump won. In particular, Senate seats in Indiana, North Dakota, West Virginia, Missouri and Montana all could flip Republican.
And if the Kennedy seat remains vacant, Republicans could mirror the Democratic strategy and use the issue to galvanize conservatives -- much as they did in 2016.
“The Republicans are going to pick up seats in the Senate, so the Democrats if anything are going to be weaker after the election in the Senate, not stronger,” former Republican House speaker Newt Gingrich predicted on “Fox & Friends” Thursday.
Pollster Scott Rasmussen said earlier this month that it was more likely that Republicans gain than lose in the Senate.
“The numbers clearly favor the GOP,” he wrote.
At the least, both parties would be able to cast the election as a vote determining the makeup of the Supreme Court, by either giving the president a stronger Republican Senate majority to confirm his nominee or forcing him to work with a Democrat-controlled chamber and name a compromise pick.
It is also possible that Democrats are attempting to punt the vote so as to avoid putting under-fire candidates in a tough position. Alex Conant, a GOP strategist for Firehouse Strategies, told Fox News that a vote held until after the election may give those senators some relief as they head into tight midterm races.
“It will be a difficult vote for many red-state Democrats who risk upsetting either their left-wing base or their home state constituents,” he said. “Democrats want to push the vote until after the election to spare Democrats up for re-election from casting a tough vote.”
Conant also rejected the idea that the Supreme Court vacancy will change the political landscape running into November.
“Liberals are already highly motivated — they hardly need another reason,” he said. “This is a reminder — if anyone needed it — that elections have consequences.”