No Democrat was gladdened by the announcement of Supreme Court Justice Anthony Kennedy’s mid-summer retirement, but Kansas gubernatorial candidate Josh Svaty is not exactly reeling from the news. In fact, he might be underreacting.
Between campaign events near Fort Scott when he heard about it, in a group text to his whole family from his sisters-in-law, Svaty’s initial reaction was, well, delayed: “Because I’m a good Kansan, I have Sprint — terrible coverage — so I was a little surprised, but incapable of opining” for about four hours, either about that or the other major newsflash of his day, about his wife’s cousin’s engagement.
In a phone interview on Wednesday, Svaty was still chill: “I don’t know if it affects state politics all that much; it would be different if there were a Senate race” in Kansas this year. It will, though affect politics at every level, across the country. Kennedy’s little surprise may have just remade Svaty’s race.
Suddenly, the Roe v. Wade decision that legalized abortion could be overturned, not in theory or some day but right here and right now. As a result, Svaty can no longer get away with any ambiguity on the issue ahead of his August Democratic primary.
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As a state legislator right out of college, in a seat Svaty campaigned for from his dorm room, he voted with his pro-life district. In this campaign, the Ellsworth farmer and former state ag secretary has said only that he respects all sides in the abortion debate and would sign no new restrictions into law.
As of this week, that’s not good enough. Because if abortion rights revert to the states, would he or would he not again vote his district, so to speak, and sign a law limiting abortion?
“I’m not necessarily trying to be coy,” he said, “but there are multiple hurdles of hypotheticals there. The political right — not the people — has weaponized this issue, and before I go down the road of hypotheticals, I want to see them put their money where their mouth is. As a person who grew up around people who care deeply about this issue” and then as someone who, while serving in Topeka, legislated alongside some Republicans who struck him as less sincere, “I’m curious to see what they’ll do” when abortion votes actually mean something.
I am, too. But before Democrats nominate Svaty over his primary competition, the milder and more conventional state Sen. Laura Kelly, who is strongly pro-choice, they’re going to want to hear a little more from him on that subject. By which I mean a lot more.
In fact, voters across the country are going to want to hear in detail from candidates about what laws they will and won’t support now that they can reasonably expect to be casting real and not show votes on abortion rights.
Another Democrat whose life just got harder is Missouri Sen. Claire McCaskill. Both she and her likely GOP challenger, attorney general Josh Hawley, will raise lots of cash on the threat to Roe, of course. But she can't vote to confirm any Trump appointee who’d swing the balance against the decision. Nor can she come right out and say that without damaging her standing as a moderate. No wonder Hawley has already tweaked her with a challenge to debate the issue.
After decades of fundraising from both sides on the supposedly imminent threat to abortion rights, maybe you’re skeptical about whether this is just another false alarm. The chief counsel for the Judicial Crisis Network, which pushes for more conservative judges, said in an NPR interview on Wednesday that Democrats are “scaremongering” by saying that Roe v. Wade is endangered.
But it’s hard to believe that the chief counsel, Carrie Severino, or her group would really find Roe’s demise so scary. Why would they, when conservative jurists have argued since 1973 that the case was wrongly decided, based on a made-up right mentioned nowhere in the Constitution.
“It’s ridiculous” to argue as Severino does that the decision is not likely to be overturned, said conservative Princeton legal scholar Robert George. “You got the guy elected” for promising to appoint scholars who would do just that, and now Roe "is not going to hold."
As Svaty says, that is a few hypotheticals from now. The last time Republicans had the power to overturn the decision, in 1992, they did not. But with Trump vowing to appoint someone who will serve for 40 or 45 years, Kennedy’s most important decision from the bench may have been the last one, about the timing of his retirement.