Senate Minority Leader Mitch McConnell (R-Ky.) is looking to dial down the drama as he plots his party’s strategy for the upcoming Supreme Court fight.
McConnell is navigating complex political headwinds. He’s got conservative firebrands, including some GOP senators with White House dreams, who could use the nomination to garner attention from the party’s base. Meanwhile, a handful of Republicans are viewed as swing votes, meaning there’s no guarantee the caucus will ultimately be unified.
McConnell is warning President Biden against making a pick that caters to progressives, but also indicated Republicans will keep the upcoming confirmation battle civil and focused on qualifications of the nominee, who is expected to be the first Black woman selected for the Supreme Court.
“I think you would anticipate the Senate Republican minority … treating the nominee with respect and going through the process in a serious, thoughtful way,” McConnell told reporters.
Sen. John Cornyn (R-Texas), a McConnell ally, summed up how he sees the upcoming fight by contrasting it to the vitriolic battle over Justice Brett Kavanaugh’s confirmation: “It won’t be a replay of Kavanaugh.”
McConnell spoke with Biden, whom he cut deals with during the Obama era, on Tuesday about his forthcoming Supreme Court pick as the White House ramps up its outreach to Republicans.
The looming decision will be the first time since McConnell led Senate Republicans to nix the 60-vote hurdle for Supreme Court nominees in 2017 that he won’t be in control of the Senate, allowing Democrats to use his own rules change against him.
If all 50 Senate Democrats stick together, they’ll be able to confirm whomever Biden picks even without GOP support, though Democrats are hoping to peel off at least one Republican.
Democrats have united to confirm more than 40 judicial nominees for Biden over the past year, and McConnell and his allies are urging Republicans to set their expectations accordingly.
“We have to keep in perspective what we can and we cannot do and keep expectations realistic, because they do have the majority,” Sen. John Thune (R-S.D.), McConnell’s No. 2, told The Hill.
With the outcome of the Supreme Court fight likely baked in and the 6-3 conservative balance not expected to change, Republicans also believe there are better issues for them to focus on heading into November, when they think making the midterm elections a referendum on Democrats will pay political dividends for them.
Thune, speaking to reporters, added that Republicans wouldn’t let a focus by Democrats on filling the Supreme Court seat “take away from the many things that the Democrats don’t want to talk about.”
A GOP senator added Republicans have a “better argument” to make to voters on issues besides the Supreme Court.
“We’re almost certainly going to lose, and there’s no reason to look worse while losing than you have to,” the GOP senator added.
McConnell met with Republican members of the Senate Judiciary Committee as the caucus starts to strategize about its path forward.
GOP senators stressed afterward that they would focus on the nominee’s qualifications and legal philosophy once Biden nominates her, not her race.
Sen. Lindsey Graham (R-S.C.), a member of the Judiciary Committee, added, “I think it will be challenging for the nominee, it should be — challenging and respectful.”
Supreme Court fights have become increasingly heated in recent years in the Senate.
In 2016, Republicans, led by McConnell, refused to give a hearing or a vote to Merrick Garland, former President Obama’s final nominee, sparking years of bad blood with Senate Democrats.
Then, in 2017, Republicans nixed the 60-vote filibuster for Supreme Court nominees so they could confirm Justice Neil Gorsuch, who won three Democratic votes. In 2018, Kavanaugh’s confirmation battle got upended by sexual assault allegations, which he denied. And in 2020, Republicans moved at lightning speed to confirm Justice Amy Coney Barrett to the seat held by the late liberal Justice Ruth Bader Ginsburg just days before the 2020 elections.
Democrats are hopeful they’ll be able to win over at least one Republican senator, with Senate Judiciary Committee Chairman Dick Durbin (Ill.), the No. 2 Senate Democrat, saying that he views “several” as open to supporting Biden’s eventual pick.
Some Republicans are warning that their colleagues should be prepared to fight if Biden’s nominee is what they see as outside of the mainstream.
“I think that our voters, our constituents, sent us up here to do a job,” said Sen. Josh Hawley (R-Mo.). “They expect us to scrutinize Supreme Court nominees. … We have an obligation to do that.”
Republicans aren’t expected to be able to block Democrats from confirming a nominee if they all remain united. But there are procedural steps they could take to create headaches for Democrats and slow down the process, including delaying the vote by a week in committee, boycotting the committee vote or trying to force the Senate into a closed session, which Democrats did during their consideration of Barrett’s nomination.
Judiciary Committee Republicans say they didn’t get into the procedure during their meeting with McConnell, but there’s early skepticism in the caucus that there would be widespread support for going all-in on using the Senate’s rulebook to make the confirmation process more painful for Democrats.
And though several GOP senators, including Hawley, have been critical of Biden for limiting potential nominees to Black women, that stance has drawn strong pushback from some within their own party.
Sen. Roy Blunt (R-Mo.) said that he had “no problem with the president making that pledge during the campaign.”
“I would love to vote to put the first Black woman on the court,” Blunt added.
Republicans say once Biden makes his pick, they’ll focus their strategy on the nominee’s qualifications and temperament, pledging to avoid making their attacks personal — pledges some delivered with a dig at Democrats.
“Whoever he nominates, once we get a nomination, that person needs to have a very thorough process focused on their judicial record … as opposed to the kind of character assassination that unfortunately we’ve seen with Justice Kavanaugh,” Hawley said.
Sen. Ted Cruz (R-Texas), a member of the Judiciary Committee, said that Republicans on the committee and McConnell agreed that they would focus on the nominee’s record, credentials and public statements.
“All of us were agreed that what we will not do … is engage in the kind of partisan circus of personal smears that Democrats have repeatedly resorted to,” Cruz said.