The fight over President Trump’s next nomination to the Supreme Court began almost immediately after the news broke of the opening on Wednesday.
Moments after Supreme Court Justice Anthony Kennedy said he would retire, Senate Majority Leader Mitch McConnell (R-Ky.) said the Senate would act before the midterm election to confirm Trump’s next nominee.
{mosads}“We will vote to confirm Justice Kennedy’s successor this fall,” McConnell said on the Senate floor.
Democrats immediately cried foul, arguing the nomination fight should come next year.
Senate Democratic Leader Charles Schumer (N.Y.), recalling the bitter fight over Merrick Garland’s nomination to the court in 2016, demanded that McConnell hold off until a new Congress is seated in 2019. He said Republicans should let voters weigh in on the choice through the November midterm elections.
Schumer said it would be the “height of hypocrisy” for Republicans to move quickly after they held open the late Justice Antonin Scalia’s seat for more than a year in 2016.
McConnell blocked Garland, former President Obama’s nominee for that seat, from getting even a hearing. He said at the time that voters needed to help decide the ideological balance of the court by picking a new president.
“Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard,” Schumer said Wednesday.
Other Democrats, including Minority Whip Dick Durbin (Ill.) and Sen. Dianne Feinstein (Calif.), the ranking member of the Senate Judiciary Committee, quickly echoed Schumer’s demands.
McConnell, for his part, called on Democrats to give Trump’s next pick fair consideration.
“It’s imperative that the president’s nominee be considered fairly and not subjected to personal attacks,” he said.
Democrats would appear to have little hope of blocking a Trump pick, though Republicans hold just 51 seats and usually have 50 members in the chamber given Sen. John McCain’s (R-Ariz.) battle with brain cancer.
Still, a vote before the midterm elections could be difficult for a number of Democratic senators facing reelection in states won by Trump, including Sens. Joe Manchin (W.Va.), Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.).
All are likely to face significant pressure to back Trump’s pick.
The Judicial Crisis Network, a group that advocates for conservative judges, announced Wednesday it would launch a million-dollar advertising campaign to pressure Democrats in red states to vote for Trump’s nominee. The group spent $10 million to support Justice Neil Gorsuch’s nomination last year.
“It’s going to be a big battle,” said Sen. Orrin Hatch (R-Utah), a former Judiciary Committee chairman.
Republicans think a Supreme Court debate will help rev up their base at a time when polls show Democratic voters are more enthusiastic about voting than Republicans.
“It does once again heighten the importance of a Republican Senate to voters who are reminded again about how big an impact that the Senate majority has on who serves on the court,” said Sen. Roy Blunt (Mo.), a member of the Senate GOP leadership.
“I think that will encourage people who want to see that majority to continue to get out and work harder than they would have otherwise,” he added.
Senate Republican Whip John Cornyn (Texas) said a Supreme Court fight is “one thing that energizes conservatives more than anything else.”
Abortion is likely to be a flashpoint in the debate, as Kennedy had been the fifth vote for upholding Roe v. Wade, the landmark case that established a right to abortion in 1973.
Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) are two Republicans who support abortion rights and are likely to exert significant influence on the debate.
They voted last year against legislation to repeal and replace ObamaCare in part because it would have defunded Planned Parenthood.
Collins said she would prefer Trump to pick a more centrist judge in the mold of Kennedy, who ruled in cases such as Planned Parenthood v. Casey to uphold a woman’s right to an abortion.
“That obviously would be my preference but what I’m most looking for is a justice that will follow the law and the Constitution,” she said.
“I view Roe v. Wade as being settled law. It’s clearly precedent and I always look for judges who respect precedent,” Collins added.
Democrats on Wednesday framed the new Supreme Court vacancy as a proxy battle over the future of abortion and reproductive rights, a preview of their strategy for the months ahead.
“From Day One, President Trump and Vice President Pence have made it clear that turning back the clock on women’s health and reproductive rights is a top priority for them,” Sen. Patty Murray (D-Wash.) warned on the Senate floor.
Some GOP lawmakers say they want a conservative justice and have praised the possible candidates Trump listed during the 2016 presidential campaign as acceptable.
“The president has a lot of good choices. I hope they can give us a good, highly qualified nominee quickly. Then we’ll get on with it,” said Sen. Lindsey Graham (R-S.C.), a member of the Judiciary Committee.
Trump has released a list of 25 people he would consider for the court, including William Pryor of the 11th U.S. Circuit Court of Appeals, Don Willett of the Texas Supreme Court, Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit and Sen. Mike Lee (R) of Utah.
Graham, the sponsor of a bill to ban abortion after 20 weeks, downplayed the likely impact on Roe v. Wade.
“Roe v. Wade has been affirmed many times in different ways,” he said. “There’s no litmus test.”
Republicans say they want to get started on the confirmation process as soon as possible.
“Aug. 1 we need to have someone ready,” said Sen. John Kennedy (R-La.), another member of the Judiciary Committee.
“I want a good lawyer who is whip smart, who is not a hater, who calls the balls and the strikes, who understands the way Madison meant the separation of powers to work, and who will listen to all points of view,” Kennedy added.
It has taken the Senate between 66 and 87 days to confirm the last four Supreme Court nominees. If that trend holds, it would set up a confirmation vote for October, shortly before Election Day.
Chief Justice John Roberts was confirmed in 2005 in an especially quick time frame, 23 days.
Kennedy’s resignation will become effective on July 31.