Senate GOP faces uncharted waters in Supreme Court fight

Republicans are facing a decision on how hard to fight against President Biden’s Supreme Court pick, with little chance they can scuttle the nomination that is expected to elevate the first Black woman to the court.  

The upcoming fight over Biden’s nominee, whom the president intends to nominate by the end of February, is new territory for Republicans: It’s the first time since 2017, when they got rid of the 60-vote threshold for Supreme Court picks, that they haven’t controlled the chamber or had a GOP president in the White House.  

Given the historic nature of Biden’s pick and the uphill battle Republicans face to sink the nominee, Democrats are cautiously hopeful that they can peel off at least one GOP senator, which would let them tout the win as bipartisan.  

“There’s a decent chance of getting Republican votes for this pick. … I don’t know how much Republicans will be on a war footing on this one,” said Brian Fallon, the executive director of Demand Justice.  

The last time a Democratic president made a Supreme Court nomination, in 2016, then-Majority Leader Mitch McConnell (R-Ky.) refused to take up Merrick Garland’s nomination, sowing years-long grudges that still linger for Democratic senators in 2022.  

In 2017, Republicans nixed the 60-vote hurdle for Supreme Court nominees to confirm Neil Gorsuch, who got the support of three Democratic senators. In 2018, Brett Kavanaugh’s initially sleepy nomination was rocked by sexual assault allegations, which he denied, that drove the Senate into one of its most contentious fights in recent memory. And in 2020, Republicans moved at lightning speed to replace liberal icon Justice Ruth Bader Ginsburg with conservative Amy Coney Barrett. 

The three confirmations of justices nominated by former President Trump helped cement a reshaping of the federal judiciary for decades, with McConnell also confirming a total of 234 judicial nominations during the last GOP administration.  

But now, Republicans find themselves on the opposite side of the looming fight, which comes months before a midterm election where Republicans are feeling bullish about their chances of winning back congressional majorities. McConnell is trying to keep the focus on Biden to make November a referendum on his presidency.

Senate Republicans will meet for the first time as a caucus since Justice Stephen Breyer’s retirement announcement on Tuesday. McConnell also meets with his leadership team on Monday evening, when the Senate is in session.  

McConnell has already spoken to Sen. Chuck Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee, an aide confirmed to The Hill.  

While he offered an initial statement warning Biden not to “outsource” picking the nominee, pushed by reporters in Kentucky, the Senate GOP leader largely kept his powder dry.  

“Look, I’m going to give the president’s nominee — whoever that may be — a fair look,” McConnell said. “And not predict today, when we don’t even know who the nominee is, how I might vote.”  

Most Republicans, including McConnell, are viewed as unlikely to vote for whomever Biden nominates.  

But Sen. Susan Collins (R-Maine), whom Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) has spoken with, is a possibility. She has supported more of Biden’s judicial nominees than any other GOP senator.  

Collins and Sen. Lindsey Graham (R-S.C.) are the only two Republicans remaining in the Senate who voted for former President Obama’s Supreme Court nominees. They, along with Sen. Lisa Murkowski (R-Alaska), have also voted for more of Biden’s judicial nominees than the rest of their caucus, making them viewed as the most likely of the caucus to vote for Biden’s nominee. 

Each previously voted for federal appellate Judge Ketanji Brown Jackson, viewed as the front-runner to replace Breyer, while Rep. James Clyburn (D-S.C.), the House Democratic whip, has predicted that Graham, Sen. Tim Scott (R-S.C.) and potentially more GOP senators would support J. Michelle Childs, another possible nominee backed by Clyburn. 

Collins told reporters that there “is no need for any rush” and that the Senate can “take our time, have hearings, go through the process, which is a very important one. It is a lifetime appointment, after all.” 

Murkowski, who is up for reelection in November, echoed that in an interview with Alaska radio station KDLL, saying that the nomination should be given the “due time and consideration without kind of rushing through quickly.”  

“I will look at any nominee who comes forward with very critical review and analysis. I think it’s well known that I take my time. I deliberate,” she said.  

Even if every Republican opposes Biden’s nominee, McConnell and his caucus will still need to decide about how painful to make the confirmation for Democrats, who don’t need any GOP votes if they can keep their 50 members together. 

Republicans could, for example, boycott the committee vote and deny Democrats the quorum they need to vote on a nomination, as well as the majority Judiciary Committee rules require to report a nomination. And even an absence of one Democratic senator on the floor could slow down the process, with Senate Majority Leader Charles Schumer (D-N.Y.) eyeing a timeline similar to the 30 days between when Trump announced Barrett’s nomination and her confirmation vote.  

Graham acknowledged the GOP disadvantage, noting that if “Democrats hang together — which I expect they will — they have the power to replace Justice Breyer in 2022 without one Republican vote in support.”  

“Elections have consequences, and that is most evident when it comes to fulfilling vacancies on the Supreme Court,” Graham said.  

Sen. Thom Tillis (R-N.C.), a member of the Judiciary Committee, also vowed to treat Biden’s nominee with “fairness and civility” before accusing Democrats of nixing that “basic courtesy” for Trump’s picks. Sen. John Cornyn (R-Texas), another member of the committee, echoed that, saying Biden’s nominee “will be treated fairly and with the dignity and respect someone of his or her caliber deserves.” 

Some conservatives are urging Senate Republicans to prepare to launch an all-out fight against Biden’s nominee and have homed in on the president’s pledge to appoint a Black woman.   

“I believe it to be typical of this administration, which has been the most race-obsessed, gender-obsessed in terms of trying to deconstruct genders, actually. I mean, this is a hard woke left administration,” Sen. Josh Hawley (R-Mo.), a member of the Judiciary Committee, told Fox News.  

Hawley added in a tweet that if Biden appoints a “left wing activist” then “expect a major battle in the Senate.”  

Democrats believe that if Republicans launch high-profile attacks against Biden’s nominee, it could backfire by energizing Democratic voters heading into the midterms. They note that Scott is the only Black Republican senator, and every GOP member of the Judiciary Committee, which will spend days in public, televised hearings questioning Biden’s nominee, is white. 

Some Republicans are urging GOP senators to focus their efforts on the policy fights that have put them within striking distance of taking back the House and Senate in November, and not get bogged down in a divisive court fight that they likely can’t win.  

“The question is, how cooperative should they be and how cooperative will they be? On the should part, they should make this the least dramatic confirmation possible and just move it off the table because it is an inevitable loser,” GOP strategist Rory Cooper told National Journal’s “Against the Grain” podcast.  

Ed Whelan, a conservative court watcher and a senior fellow for the Ethics and Public Policy Center, added that Republicans shouldn’t expect to defeat the nomination “unless Biden really messes up” and that their goal “should instead be to continue to win public debate over judicial philosophy and inflict political costs.”