(Bloomberg) -- The fate of President Donald Trump’s Supreme Court nominee will turn on a handful of Senate outliers in both parties -- Republicans who support abortion rights and Democrats who don’t.
With Republicans holding just a 51-49 advantage in the Senate, Trump will have to win over senators in one or both camps to confirm a justice to replace retiring Justice Anthony Kennedy.
If Trump can hold Republicans together as he did with his first nominee, Neil Gorsuch, he won’t need a single Democrat on board. But that would require assuring the three Republican senators who’ve publicly supported upholding the landmark Roe v. Wade abortion-rights ruling -- Lisa Murkowski of Alaska, Susan Collins of Maine and Shelley Moore Capito of West Virginia.
Trump has a different calculation to make with potential crossover Democrats, including two opponents of abortion rights, Joe Manchin of West Virginia and Joe Donnelly of Indiana. A third Democrat, Heidi Heitkamp of North Dakota, supports abortion rights but joined Manchin and Donnelly as the only Democrats voting to confirm Gorsuch. All three are seeking re-election in November in states Trump won handily in 2016 and face political risks no matter how they vote.
Abortion isn’t the only issue at stake with Trump’s Supreme Court pick -- a new justice could solidify a conservative majority that would move the court to the right on health care, gay rights, affirmative action, the death penalty, voting rights and the government’s regulation of business. But the 1973 Roe decision is easily the most politically explosive for the court and for the senators who’ll vote on the confirmation.
Outside interest groups on both sides already are gearing up for the fight with highly targeted appeals.
NARAL Pro-Choice America, the nation’s leading group backing abortion rights, has begun running print and digital ads in Collins’s home state. They point out that Trump promised to appoint justices who would overturn Roe v. Wade, adding, “We believe him. Don’t you, Senator Collins?” Meanwhile, the conservative group Judicial Crisis Network has begun running digital ads directed to North Dakota, Indiana and West Virginia.
Collins said last weekend she wouldn’t vote for someone openly hostile to Roe; Murkowski told reporters Roe would be "a factor" in her vote, but not the only factor. Both the Republican senators as well as Manchin, Heitkamp and Donnelly were among the senators who met with Trump last week to discuss the high court choice.
That White House meeting was a clear sign of their importance to the confirmation fight, said Ron Bonjean, a former top GOP congressional aide who helped manage the White House’s outreach to senators during the Gorsuch confirmation.
"Getting them into a room with the president and starting a dialogue and getting them to communicate is a really strong first step," he said.
Trump has long promised his voters that he’d choose justices who’d overturn Roe, and most Republican senators have campaigned on restricting abortion rights. The president said on Fox Business he probably won’t ask candidates their views on abortion. But outside the GOP, polls show there is broad public support for the right to at least some access to abortion.
That gives Trump an incentive to choose a conservative jurist without much of a paper trail on the abortion issue but whose general philosophy would lead Republicans to conclude he or she would find fault with Roe v. Wade. The result is a peculiarly Washington brand of Kabuki theater perfected by earlier court picks who offered vague bromides about interpreting the law in response to specific questions on issues.
"The best way to survive is to pick a Gorsuch-type person who is a textualist or originalist, but who really doesn’t have a record of speaking and writing on abortion," said Curt Levey, president of the Committee for Justice, a conservative judicial advocacy group.
Senior Senate Republicans are pre-emptively hoping to steer Trump toward such a pick. And Judiciary Chairman Chuck Grassley’s staff sent a memo to reporters citing the "Ginsburg standard" -- referring to Justice Ruth Bader Ginsburg’s 1993 confirmation -- noting that recent Supreme Court nominees have all declined to answer questions about how they would handle particular cases.
"For the crowd for whom abortion is No. 1, maybe half of those people still get it, and that somebody who is an originalist will make them happy when it comes to abortion and other social issues,” Levey said.
Stand on Roe
One pick that could roil the Senate like no other is Mike Lee of Utah, the conservative Utah senator interviewed by Trump along with other candidates on Monday.
In a Senate floor speech in January, Lee said Roe "stripped the unborn of their right to life" and that its main effect on American culture "has been to cheapen the value of humanity itself." He likened it to the Supreme Court’s 1857 Dred Scott decision that held that slaves didn’t have rights as citizens.
Immediately after Kennedy’s announcement, however, Lee expressed a more cautious view in the Senate hallways. "Any precedent that’s on the books, stare decisis has to be taken into account," he told reporters who asked him about Roe, referring to the legal principle that the court generally won’t disturb settled precedents.
Knowing they can’t block a nominee on their own, Senate Democrats are trying to steer Trump to pick a judge they hope will do the least damage on issues they care about.
Senate Democratic leader Chuck Schumer of New York has emphasized issues besides abortion rights that have some bipartisan support, including Trump’s attempt to have the courts strike down a popular provision of the Obamacare law that protects people with pre-existing health conditions.
Schumer took early aim at one potential pick, recently confirmed Circuit Court Judge Amy Coney Barrett, saying Monday she would overturn Roe and strike down the Affordable Care Act provision on pre-existing conditions.
"She disagrees with ‘stare decisis’ -- the idea that cases like Roe v. Wade are settled law in the courts -- and instead has said she wants ‘space’ for ‘reargument,’" he tweeted, sharing a link to one of her published scholarly articles.
A third Democrat who has long opposed abortion rights, Senator Bob Casey of Pennsylvania, has cited concerns about corporate power rather than abortion in saying he’s "highly unlikely" to back any of the 25 names on Trump’s list of potential picks.
"Thus far, the Trump Administration has nominated many far-right judges that put the interests of big corporations ahead of justice and fairness for all Americans," he tweeted last week.
Manchin, Donnelly and Heitkamp have a tougher political calculation to make, given they represent much more Trump-friendly states than Casey, who is also on the ballot in November.
Manchin and Heitkamp may face other pressures to support Trump’s nominee, including the potential for rulings that would blunt government regulations. Both represent states heavily reliant on fossil fuel extraction industries.
Pressure will be enormous on the Trump-state Democrats. Their votes weren’t critical to Gorsuch’s confirmation, who had the backing of every Republican. So close to an election, they face the potential of depressing Democratic turnout with a yes vote or angering Trump supporters if they vote no.
Bonjean said those Democrats are already under fire back home and can expect a sustained campaign.
"There will be a lot of pressure from grassroots groups, advertising, Trump visits to those states," he said. "It will be viewed as a real litmus test about whether these Democrats are truly bipartisan and can work across the aisle with Republicans or not."
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