McConnell has no margin for error in the narrowly divided Senate.
Mitch McConnell and his Republican caucus are enthusiastic about the prospect of filling a Supreme Court vacancy before the midterm elections. But they don’t deny the enormity of the task at hand.
McConnell is overseeing the slimmest Senate majority in modern times to handle a Supreme Court confirmation, and he has no margin for error in what’s effectively a 50-49 majority with Sen. John McCain (R-Ariz.) still out recovering from brain cancer. The Kentucky Republican is simultaneously engaged in a brutal fight for control of the Senate that will be animated by the Supreme Court battle inside the chamber.
McConnell and Senate Judiciary Chairman Chuck Grassley’s handling of the confirmation process is likely to have a major effect on how voters perceive the GOP majority as the election nears. And though GOP leaders express confidence that the Senate will approve whoever President Donald Trump picks on Monday evening, they concede that the next two months are going to put their majority to the test.
As Sen. Jerry Moran (R-Kan.) put it: “Smoothness is probably not an outcome we can expect.”
“It’s going to be very challenging. The Democratic base is going to expect their officeholders to perform,” said Senate Majority Whip John Cornyn (R-Texas), who serves on the Judiciary Committee and counts the majority’s votes on the floor. “Chairman Grassley is going to handle this in an orderly, respectful way. But we’re not going to tolerate any foot-dragging either.”
If the nomination of the next Supreme Court justice fails before the election, Republicans risk losing control of the chamber to Democrats and allowing Senate Minority Leader Chuck Schumer to take over the confirmation process. That increases the need for Republicans to move quickly — and for Democrats to do everything they can to pick apart Trump’s nominee.
“This is not a political game for us,” said Sen. Debbie Stabenow (D-Mich.), the No. 4 Democratic leader. “This is a person who casts the tie vote on major issues of health care for women, for people with pre-existing conditions, and major issues about protecting our land and water, about voting rights, about every part of our life.”
The heated atmosphere and high political stakes were on vivid display on Monday before a nominee was even named, as Schumer came to the Senate floor to demand an “affirmative statement of support for the personal liberties of all Americans from the next Supreme Court nominee.”
“The onus is on his nominee to show where he or she might stand,” Schumer said.
Democrats also still seethe over McConnell’s move to prevent President Barack Obama’s last Supreme Court nominee, Merrick Garland, from even getting a hearing in 2016.
Watching McConnell launch a quick strike confirmation ahead of the midterms is almost too much for them, with McConnell coming to the floor Monday to mock Democrats like Bob Casey (D-Pa.) for announcing opposition to a new justice before one was even named.
“We should treat the process with the respect and dignity that it deserves,” the majority leader said. “One more round of 40-year-old scare tactics will not stop us.”
But Republicans are realistic about their challenges. The last time the Senate was divided as narrowly as it is now while considering a Supreme Court confirmation was 1959, when the chamber had yet to grow to 100 seats, according to a POLITICO analysis.
And GOP senators are barely even acknowledging the possibility that they could get 60 votes in support of a justice, the old standard before McConnell changed the filibuster threshold on Supreme Court nominees to a simple majority last year.
Instead, Republicans are courting a trio of red-state Democrats that supported Supreme Court Justice Neil Gorsuch last year: Joe Manchin of West Virginia, Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota. All three turned down invitations to the White House for the announcement on Monday evening and all three are under tremendous pressure from liberals to oppose Trump’s nominee this time around — as is Sen. Doug Jones (D-Ala.), who will cast his first vote on the high court this year, though he won’t face voters again until 2020.
Similarly, they and other at-risk Democrats like Claire McCaskill of Missouri and Jon Tester of Montana will face a round of savage political attacks from the right if they vote no.
“If your state supported Donald Trump and you’re in a state where you’re trying to explain to voters why you voted against their nomination, it’s a very big challenge,” said Sen. Cory Gardner (R-Colo.), who chairs the GOP’s campaign arm. “It’s probably a hot potato you don’t want to have.”
Republicans don’t need Democrats if they can hold their fractious caucus together, and McConnell has generally fared well at that on nominations: None have failed on the Senate floor in the past 18 months, despite the GOP leader’s fragile majority, although a couple of controversial Trump nominees have withdrawn. But replacing swing vote Anthony Kennedy on the Supreme Court could prove more difficult.
Moderate GOP Sens. Lisa Murkowski of Alaska and Susan Collins of Maine both generally support abortion rights, increasing the significance of their vote on Trump’s conservative pick. And Sens. Rand Paul (R-Ky.) and Jeff Flake (R-Ariz.) have bucked some of Trump’s nominees.
But the easiest path to confirmation remains keeping every GOP senator in the fold.
“Republicans will all be there,” insisted Sen. John Thune of South Dakota, the No. 3 GOP leader. “Hopefully.”
Still, a strictly partisan vote would likely be harder for the GOP and Trump to defend ahead of the midterms.
Grassley said that he will be “deliberate” in the committee. And in former Sen. Jon Kyl (R-Ariz.), the nominee has an influential sherpa to navigate the process. Kyl’s successor in the Senate, Sen. Jeff Flake (R-Ariz.), said Monday that Kyl is «well-respected by everybody — I think, both sides on the Judiciary Committee.»
But Democrats are not hopeful that the confirmation process will be bipartisan, in part because the selection process was run by the conservative Federalist Society.
