Senate battle over court nominee threatens to stymie legislative progress

The fight over the next Supreme Court nominee could claim several legislative victims in the Senate this year. 

Senators are griping that the looming nomination, with an announcement expected on Monday, will prevent them from being able to focus on legislation, as lawmakers dig in for a drawn-out rhetorical battle to confirm President Trump’s pick to succeed retiring Justice Anthony Kennedy.

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GOP Sen. Lisa Murkowski (Alaska), who’s expected to play a pivotal role in the confirmation process, noted that in addition to funding the government beyond Sept. 30, the Senate needs to pass a bill reauthorizing the Federal Aviation Administration (FAA). And she wants to pass an energy bill.

Those three measures will require help from Democrats to get over the finish line.

“In order to get all these things you need to have a level of cooperation,” said Murkowski. “And I don’t want us to once again fall into this great divide because we are arguing over this vacancy.”

Republicans will have to juggle the court fight with legislation on the floor — a shift from the lead-up to Justice Neil Gorsuch’s confirmation. The Senate spent most of early 2017 locked in back-to-back nomination votes for administration posts and to nix Obama-era rules, both of which Republicans could pass without Democratic votes.

When asked about how Republicans were discussing health care off the floor while also confirming Trump’s first Supreme Court nominee, Murkowski quipped that she had “blocked that from my mind. It’s like labor.”

Sen. Susan Collins (R-Maine), who’s also expected to play a decisive role in the Supreme Court battle, jokingly asked reporters after Kennedy’s announcement if they were stalking her Senate office to talk
about prescription drug-pricing legislation, a longtime pet issue.

“I thought, ‘Oh no, here we go again,’ ” she told “The Daily,” a podcast from The New York Times, referring to the fight to replace Kennedy.

The Supreme Court drama comes as GOP senators battle a perception among voters that they can’t achieve major legislative accomplishments, despite Republican control of Congress and the White House.

The legislative setbacks are well known: They failed to repeal ObamaCare, despite years of campaign pledges; they missed two government funding deadlines this year, one because of dug-in opposition from a GOP senator; and a high-profile immigration fight has been deadlocked since February, when the chamber rejected four bills addressing the issue.

While a Supreme Court nomination would give Trump a major victory to tout to conservative voters heading into the midterms, GOP senators are quietly lamenting the coming fight for strikingly different reasons: They worry it will sour a recent string of bipartisan legislative victories.

Republican senators point to passage of a mammoth agriculture bill, the annual defense policy measure and passage of the first government funding package as signs of renewed goodwill on moving legislation through the Senate.

Majority Leader Mitch McConnell (R-Ky.) said at a recent Politico event, before Kennedy announced his retirement, that the steady movement of government funding bills won’t “make a headline” but “it’s what we’re supposed to do … and we’re in the midst of doing it.”

The Senate Appropriations Committee advanced all 12 government spending bills before the July 4 recess. That marks the “most punctual timeframe” it has passed the legislation since 1988, according to the panel.

The public fretting among lawmakers about the potential for months of Supreme Court-related gridlock comes after McConnell canceled part of the August recess, a move that will keep senators in town for an extra three weeks.

“We have plenty of work to do, and we’ll be here through the summer,” McConnell said. 

McConnell’s office, at the time, outlined a slate of legislation the Senate could take up instead of holding a traditional summer vacation. That list includes final passage of the defense bill, water infrastructure and opioid legislation, funding the government and reauthorizing the National Flood Insurance Program.

The move also pays political dividends for Republicans by keeping incumbent red-state Democrats off the campaign trail during what would otherwise be their longest stretch of uninterrupted time to appeal to voters before Election Day in November.

But the fight over the Supreme Court is likely to consume the chamber until the final confirmation vote is cast, assuming the Senate Judiciary Committee advances Trump’s pick to the full Senate.

GOP leadership and the White House want Trump’s nominee in place before the next Supreme Court term begins in early October, potentially setting up a nightmare September where the Senate is trying to avoid a government shutdown and confirm the nominee.

Democrats, meanwhile, can’t block a nominee on their own, but they are already facing enormous pressure from activists on the left to use the Senate’s procedural tools to slow down Trump’s nominee or jam up the Senate as punishment for Republicans trying to hold a vote before the midterm elections.

Sen. Richard Shelby (R-Ala.), chairman of the Appropriations Committee, said that getting a Supreme Court nominee to the Senate floor will “take a while.” In the meantime, he said he hopes the chamber can maintain its momentum by moving more government funding bills.

“To me, the Supreme Court and the fight over that is not directly connected to appropriations,” he said. “In a way, it’s all a part of politics and how you separate it.”