(Bloomberg) -- Democrats promised to throw every obstacle in the way of President Donald Trump’s pick to replace Justice Anthony Kennedy on the Supreme Court, but Senate procedures and election-year politics don’t give them much of a chance.
Republicans last year eliminated the 60-vote barrier to setting a vote for Supreme Court nominees, leaving Democrats without the tool of a filibuster. Their best hope would be to hold Senate Democrats united in opposition and peel off at least two Republicans to vote against Trump’s nominee.
With several Democratic senators facing re-election November in states won overwhelmingly by Trump and Republican lawmakers showing little appetite for crossing a president with a tight grip on GOP voters, that hope is dim -- and may rest squarely on two female Senate Republicans, Susan Collins and Lisa Murkowski.
Less than an hour after Kennedy announced his retirement on Wednesday, Senate Majority Leader Mitch McConnell said the chamber will move swiftly once Trump nominates a replacement with a confirmation vote in the “fall,” throwing the issue directly into the middle of the midterm congressional elections.
Senate Minority Leader Chuck Schumer countered by calling on Republicans to delay a confirmation until after the elections, saying voters have the right to weigh in on “the most important Supreme Court vacancy for this country in at least a generation.”
A Supreme Court fight right before an already heated November elections will energize voters in both parties, with divisive issues including abortion rights and access to health care hanging in the balance. It will serve as yet another reminder of the high stakes in deciding which party controls the House and Senate and may bolster turnout in ways no one can yet predict.
“It’s an election season. It’s obviously a politically charged issue as these fights always are,” said Senator John Thune of South Dakota, the No. 3 GOP leader. “For our base, for their base, too, it kind of galvanizes them and makes them very motivated and engaged. I suspect that happens on both sides.”
One thing is clear, though: the half-dozen incumbent Democrats in competitive races in states Trump won in 2016 -- including Joe Donnelly of Indiana, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota -- are in a tight spot. Those three senators voted for Trump’s first Supreme Court nominee, Neil Gorsuch.
Pressure on Democrats
This time they will be under more intense pressure to stick with Democratic base groups on the confirmation, even as they’re campaigning in states where many voters are likely to favor Trump’s nominee. Republicans have credited the vacancy on Supreme Court left by the death of Justice Antonin Scalia with helping to galvanize their voters behind Trump in 2016 after they blocked then-President Barack Obama’s nomination of Merrick Garland.
“There are no good choices for them here,” said Jennifer Duffy, Senate editor of the nonpartisan Cook Political Report.
Manchin treaded carefully Wednesday, declining to back the calls by Schumer and many other senior Democrats for a delay. “Senators have a responsibility to do our jobs as elected officials and this includes our Constitutional obligation to advise and consent on a nominee to fill this Supreme Court vacancy,” he said in a statement.
Confirmation Battle Lines
Kennedy’s position in the court’s center guarantees a fierce confirmation fight. Trump vowed during the campaign to appoint justices who would vote to overturn Roe v. Wade, the 1973 decision that legalized abortion nationwide, and his appointment to replace Kennedy could make that a reality.
Kennedy voted this week with a 5-4 conservative majority to uphold Trump’s travel ban as a legitimate move to protect national security, rejecting arguments that the president singled out Muslims. It was the most prominent in a series of narrowly decided cases this term that will have interest groups on both sides devoting massive resources to sway senators.
Kennedy’s departure puts the Supreme Court at a tipping point. Another Gorsuch-type nominee could create the most conservative court since the justices blocked a number of President Franklin D. Roosevelt’s New Deal programs in the 1930s.
Democrats yesterday said the confirmation holds stark risks for middle-class Americans, minorities, and women.
“In recent years, the Supreme Court’s conservative majority has made profound changes to how our laws are interpreted,” Senator Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, said in a statement. “Despite assuring the Senate that it would follow precedent, the Roberts court has been chipping away at voting rights and workers’ rights, weakening the rights of immigrants, women and LGBT individuals, and diluting environmental protections.”
A central issue in the confirmation itself, though, is likely to be abortion. It could be a factor in what Collins of Maine and Murkowski of Alaska decide. Collins supports abortion rights and Murkowski is a defender of federal funds for family planning. With Arizona GOP Senator John McCain away from Washington as he battles brain cancer, Trump’s nominee could be in trouble with the loss of just one Republican vote.
Roe v. Wade
Collins on Wednesday made clear she isn’t looking for a justice who would overturn Roe v. Wade.
“I view Roe v. Wade as settled law,” she said. “It’s clearly precedent, and I always look for judges who respect precedent,” she said.
Murkowski said the abortion rights case “is one of those factors that I will weigh, just as I weighed it with the other nominations that came before us."
“So it will be a factor that I weigh. Is it the only factor that I weigh? No. No,” she said.
Murkowski called the court seat "pivotal" and called Kennedy "a model" justice but said she would evaluate the nominee the same way she has previous nominees.
"I don’t think anyone has ever suggested that I’m a pushover on any Supreme Court nomination," she said.
The one question for Democrats is whether they would engage in delaying tactics on unrelated legislation in a sort of scorched-earth strategy, but that would be risky for Trump-state Democrats hoping to show voters bipartisan accomplishments and would have no effect on the final outcome. Murkowski specifically said she hopes it doesn’t affect other issues, like appropriations, where the parties have been successfully coming together in recent weeks.
Many Republicans on Wednesday didn’t want to discuss how a new justice might affect abortion rights. Senator John Barrasso of Wyoming, a member of Republican leadership, said he is simply hoping for another conservative choice who would be “a younger version of Justice Scalia, which is what we’ve gotten with Neil Gorsuch."
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