Senator McCain's Successor, the Supreme Court and a Sherpa
Over the long holiday weekend, Americans watched as former Vietnam prisoner of war, senator, and Republican presidential candidate John McCain (R-Ariz.) was eulogized and laid to rest. For several hours on Saturday, Washington was still and somber—and relatively unified (with one very notable exception). Former Presidents George W. Bush and Barack Obama both offered words to comfort McCain’s family and sought to unite the nation, and former Sen. Russ Feingold (D-Wis.) and New York City Mayor Michael Bloomberg served as two of McCain’s bipartisan pallbearers.
By Tuesday, things had returned to usual.
As the humidity and temperatures rose outside, the first day of confirmation hearings for Supreme Court nominee Judge Brett Kavanaugh was predictably rhetorically hot. Protesters, including the actress Piper Perabo of Coyote Ugly fame, attempted multiple times to disrupt the proceedings, which got off to an acrimonious start. Following the Trump administration’s release of more than 40,000 pages of Kavanaugh-related documents less than 15 hours before the hearing began, Democrats called for the confirmation process to slow down to allow the Senate to review Kavanaugh’s papers during his tenure in the Bush White House. (An additional 100,000 pages still have not been released to Democrats, reporters, or the public.)
Hearings will continue throughout this week, but barring the unveiling of some hidden issue so well concealed that the White House’s thorough vetting failed to catch it, very little can be done procedurally now to disrupt Kavanaugh’s eventual confirmation. He should be the ninth member of the nation’s highest court by November at the latest, and, in all likelihood, will be a Supreme Court justice within the next several weeks.
Kavanaugh can partially thank Arizona Gov. Doug Ducey (R) for his near-certain confirmation. On Tuesday, Gov. Ducey announced that former Sen. Jon Kyl (R-Ariz.) would fill McCain’s seat in the Senate for the remainder of the 115th Congress, which ends in early January.
Under Arizona state law, the governor has the power to appoint an individual to serve until 2020 when a special election will be held that will allow voters to decide who will finish the last two years of Sen. McCain’s six-year term. (The senator was reelected in 2016 before he was diagnosed with brain cancer.)
Originally, the media and political pundits speculated that Gov. Ducey would appoint someone firmly in the McCain mold—someone who, like the late senator, might be willing to buck the party on important votes, including a vote on the confirmation of a Supreme Court justice.
Instead, the governor chose a man who is both a reliable vote for the GOP and who worked well with the late senator—McCain and Kyl were allies on immigration reform in 2006 and 2007 and McCain’s widow Cindy called Kyl a “dear friend” following his appointment. Before leaving the Senate in 2013, Kyl was a member of the chamber’s GOP leadership, serving as chief whip—the lawmaker who ensures the party sticks together on tough votes.
Though he’s been a former senator for five years, Kyl’s service to Senate Republicans didn’t end in 2013. For the last several weeks, he’s served as Kavanaugh’s “sherpa.” In Washington parlance, a sherpa is someone intimately familiar with Senate rules, customs and the lawmakers themselves, and guides a nominee through confirmation. Like a summit attempt on Mount Everest, the confirmation trail is perilous and fraught with obstacles. A good sherpa both prepares his charge and guides him on the safest route to receiving the Senate’s consent.
Senate Majority Leader Mitch McConnell (R-Ky.) personally referred Kyl to the White House to serve as Kavanaugh’s sherpa. Aside from Kyl’s familiarity with the Senate and the confirmation process, McConnell saw a more personal connection: Kavanaugh, a top staff member at the White House during President George W. Bush’s first term, knows Kyl from his work there. Kyl also served on the Senate Judiciary Committee when Kavanaugh was confirmed to the D.C. Circuit Court of Appeals in 2006.
Having seen Kavanaugh through his process since his nomination on July 9, Kyl surely won’t abandon his man now, and because Majority Leader McConnell changed Senate rules last year to ban the filibuster of Supreme Court nominees, Kavanaugh only needs 50 votes (instead of the 60 needed to defeat a filibuster) to be confirmed, presuming Vice President Mike Pence casts the tiebreaking vote in favor of his boss’ nominee.
In fact, the Kavanaugh confirmation could be the sole purpose for choosing Kyl to succeed McCain. Instead of serving until 2020, Kyl has said he is only committed to serving until the January of 2019. Kyl could change his mind and serve longer, but if he does not, Gov. Ducey will select another individual to finish McCain’s term. And, in typical political fashion, here is where things get legitimately dramatic: Gov. Ducey is up for reelection—and, given the threat of a blue wave across the country this fall, he’s not a shoe-in to win. If Democrat Steve Farley bests the governor on election night, Farley—and not Ducey—could appoint the McCain/Kyl replacement, potentially throwing the Senate balance of power into question.
In actuality, at that point, especially if Republicans manage to hold on to their narrow majority in November’s election, it’s likely that Jon Kyl will opt to stay in the Senate until 2020. Ducey also could act quickly—he’ll have about two weeks between the end of the 115th Congress and the beginning of the 116th to appoint someone if Kyl does indeed step down.
In their eulogies Saturday, both presidents Bush and Obama affectionately discussed Sen. McCain’s sense of humor and his impishness. He liked being a bit of a rascal. With the close 2018 Senate race between Rep. Kyrsten Sinema (D-Ariz.) and Rep. Martha McSally (R-Ariz.) to succeed Arizona’s retiring junior senator Jeff Flake, a Republican, the Grand Canyon State already was one of the most exciting political spots to watch.
With the Kyl selection, the excitement will continue after November. The late senator would be pleased.