WASHINGTON (ChurchMilitant.com) - With President Trump promising swift action in filling the Supreme Court vacancy left after Justice Ruth Bader Ginsburg's death Friday, the question now turns to whether he will have the Senate votes to confirm his nominee. Two Catholic pro-abortion Republicans appear to be the likeliest defectors.
The president announced Monday he would likely name his High Court pick by Friday or Saturday, and will most likely nominate a woman. Lindsey Graham, chairman of the Senate Judiciary Committee, appears to agree with Trump on moving quickly on the appointment.
Once Trump officially announces his nomination, the Senate Judiciary Committee holds confirmation hearings, which typically take weeks (the shortest confirmation took 40 days, while the longest took 70). The committee is made up of 22 members (currently 12 Republicans and 10 Democrats), with eight committee members up for re-election this year (five Republicans and three Democrats).
When hearings are completed, the Judiciary Committee then votes on whether to send the nominee to the full Senate for a vote. If so, all 100 senators then vote to confirm or reject the nominee.
In 2017, Neil Gorsuch was confirmed with a vote of 54 to 45. In 2018, Brett Kavanaugh was confirmed with a vote of 50 to 48 (the vote would have been 51 to 49, had Montana Republican Steve Daines and Alaska Republican Lisa Murkowski been present).
Republicans currently control the Senate with 53 seats. Only a simple majority — 51 — are needed to confirm Trump's pick. Three Republicans could defect and Trump's nominee could still sail through, with Vice President Mike Pence casting the tiebreaking vote. While Pence has cast 13 tiebreaking votes for other federal appointments, he has never cast one to confirm a High Court nominee.
A wrench in the system could occur if Democrat Mark Kelly wins the special election in Arizona against Republican Martha McSally, who has occupied the seat after the death of Sen. John McCain. If Kelly wins, he could be seated as soon as Nov. 30 — long before Inauguration Day. And if the confirmation vote takes place after that, this would mean yet another Republican seat lost in the Senate.
While two Republican senators have indicated their wish to postpone the vote until after the election, this is no guarantee of how they will vote come confirmation time.
Thus, two questions are involved: (1) Will the senator support a vote before the election (or the inauguration)? (2) If not, and the Judiciary Comittee decides to hold a full Senate vote beforehand, will the senator cast a vote for Trump's nominee?
A "no" answer to the first question does not necessarily guarantee a "no" answer to the second.
While there are, according to RealClearPolitics, seven toss-up states for Senate races, a number of the Republicans are considered reliable Supreme Court votes.
Senator David Perdue, the incumbent in Georgia, is doing only slightly better than his opponent, Jon Ossoff, in the polls, up three points in the most recent poll in August.
Perdue, a Methodist, has a solid pro-life track record, saying of his beliefs, "[T]here are certain issues on which I will not waver. I believe that we should promote a culture that values life and protects the innocent, especially the unborn." In spite of the close race, his stance on life issues makes it likely he will try to mobilize his conservative base and vote for Trump's nominee.
Senator Daines, absent during Brett Kavanaugh's 2018 confirmation vote to attend his daughter's wedding, is in a tense race in toss-up state Montana, up only one point in the latest New York Times/Siena poll. A pro-life Presbyterian, there is little to indicate he would not vote along party lines and support Trump's nominee come vote time.
While Sen. Joni Ernst, a conservative Lutheran, is neck and neck with Democrat Theresa Greenfield in Iowa, Ernst is expected to be a reliable vote for Trump's pick. In July, when asked whether she'd support the president in naming a nominee were a Supreme Court vacancy to open up, she answered without hesitation that she would.
"I would be supportive of that," said Ernst on Iowa Press. "We have a Republican-held Senate and a Republican president, and so I don't see that there would be any difference between the president and the Senate on the selection of a Supreme Court justice."
The Joni Ernst SCOTUS comments are much more stunning in the actual video. Watch the 2 minutes. Ernst's reasoning for a lame-duck confirmation is simply that Republicans control the White House and Senate pic.twitter.com/scuuphSEXx— Iowa Starting Line (@IAStartingLine) July 17, 2020
Several Republicans, however, are considered unreliable, including Susan Collins of Maine, Alaska's Lisa Murkowski and Mitt Romney of Utah, among others. Collins and Murkowski — both pro-abortion Catholics — broke ranks with fellow Republicans, expressing hopes the confirmation vote would be held off until after the election.
Collins is up for re-election in Maine, a state Hillary Clinton won in 2016. Democrat Sara Gideon has been consistently polling ahead of her.
While Collins is banking on her Supreme Court stance to retain support from her more liberal base, it could backfire. After she said she would not support Trump in moving quickly on the nominee, critics urged swift punishment from her constituency.
"Susan Collins and Mitt Romney don't run this country," tweeted radio host Mark Levin. "If they want to leave open the possibility that a Democrat might appoint the next Supreme Court justice, their constituents should punish them at the ballot box."
1. Susan Collins and Mitt Romney don't run this country. If they want to leave open the possibility that a Democrat might appoint the next Supreme Court justice, their constituents should punish them at the ballot box.— Mark R. Levin (@marklevinshow) September 19, 2020
"Vote this useless coward out," blasted conservative commentator Matt Walsh." No mercy for Republicans who flinch here. Their careers end in disgrace."
Vote this useless coward out. No mercy for Republicans who flinch here. Their careers end in disgrace. https://t.co/kSdq0cjChs— Matt Walsh (@MattWalshBlog) September 20, 2020
Collins took a principled stand in 2018 and voted to confirm Kavanaugh. While her vote garnered praise among Republicans, she lost the endorsement of Planned Parenthood, which has gone to back her Democrat opponent this election season, the abortion giant accusing Collins of "turning her back on women."
Murkowski made her position clear in a statement issued Sunday: "For weeks, I have stated that I would not support taking up a potential Supreme Court vacancy this close to the election. Sadly, what was then a hypothetical is now our reality, but my position has not changed."
In August, Murkowski had said that filling a High Court vacancy in a presidential election year would be a "double standard" and that she "would not support it." She reiterated her position just hours before Ginsburg's death Friday.
Murkowski, who is not up for re-election until 2022, was the lone Republican to declare her opposition to Kavanaugh in 2018. She wound up casting a vote of "present" during confirmation to offset Montana Sen. Steve Daines' absence. She did cast a vote, however, to confirm Gorsuch.
Senator Cory Gardner, a Lutheran, is in a close race against Democrat John Hickenlooper in Colorado, a state that went to Hillary in 2016. Gardner has not yet revealed where he stands on the confirmation vote.
At a townhall over the weekend, when asked about his 2016 comments saying the "next president" should pick the Supreme Court nominee, Gardner ducked the question.
"I hope before the politics begin — because there will be plenty of time for that — that we have some time for this country to reflect on a great woman who led our nation's highest court and the work that she has done for this nation, whether you agree or not," he said. "There is time for debate, and there is time for politics, but the time for now is to pray for the family and to keep [them] in our hearts and prayers as we mourn as a nation."
Even so, Gardner has consistently voted pro-life, and it's unlikely he'd rankle his conservative base and risk losing the race by opposing Trump's nominee.
Gardner voted to confirm both Gorsuch and Kavanaugh.
Romney, a Mormon, was the only Republican to cast a vote in favor of impeaching Trump, receiving widespread scorn from fellow Republicans. A frequent critic of Trump, Romney has denounced him for his response to the pandemic and his claims about mail-in ballots. In July, he accused him of "unprecedented, historic corruption" for his decision to pardon Roger Stone.
Unprecedented, historic corruption: an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.— Mitt Romney (@MittRomney) July 11, 2020
Romney has refrained from issuing a public statement with regard to the Supreme Court confirmation vote.
One of Romney's staff clarified in an email Saturday, "Mr. Romney will not 'comment further until after members have reconvened' in person to discuss the matter."
If Collins or other Republicans are hoping a vote against Trump's nominee will help keep their seat, there's no guarantee. As Tom Bevan, president of RealClearPolitics, noted in 2019, "So every Dem Senator in a competitive race who voted against Kavanaugh lost ... and the one who voted for Kavanaugh survived (Manchin)."
So every Dem Senator in a competitive race who voted against Kavanaugh lost (Donnelly, Heitkamp, McCaskill, and almost certainly Nelson), and the one who voted for Kavanaugh survived (Manchin). Coincidence?— Tom Bevan (@TomBevanRCP) November 7, 2018
Those Democrats in close races were Claire McCaskill of Missouri, North Dakota's Heidi Heitkamp, Bill Nelson of Florida and Indiana's Joe Donnelly. Senator Joe Manchin, the pro-life Democrat from West Virginia, broke with fellow Democrats and cast a vote for Kavanaugh — and won re-election.