Behind the scenes, Senate Majority Leader Mitch McConnell is calculating whether he has the votes to quickly confirm Trump’s eventual nominee to the Supreme Court, focusing in large part on the party’s most vulnerable Republicans facing voters in less than two months. The Kentucky Republican could only lose three senators of his 53-47 majority and still confirm the pick with a tie-breaking vote from Vice President Mike Pence.
But moving ahead on a nomination now could anger some voters who may recoil at the GOP’s heavy-handed tactics, including in Democratic-leaning states where Republicans face voters in the fall. On balance, though, Republicans say that moving ahead now would be far more beneficial to keeping control of the narrowly divided chamber.
In the wake of Justice Ruth Bader Ginsburg’s death on Friday, several of the most vulnerable Republican senators — Thom Tillis of North Carolina, Martha McSally of Arizona and Kelly Loeffler of Georgia — have signaled their support for moving ahead with confirmation proceedings this year. Those three senators are running behind Trump in the polls, suggesting that they need to coalesce their party’s support.
“This U.S. Senate should vote on President Trump’s next nominee for the U.S. Supreme Court,” tweeted McSally on Friday night.
And before Ginsburg died, vulnerable Sen. Joni Ernst of Iowa also supported taking up a Trump nominee after November in a lame-duck session of Congress.
GOP leaders calculate math ahead of confirmation fight
With vulnerable Republicans beginning to fall in line, GOP leaders say they are confident that they will ultimately get the votes to confirm Trump’s nominee this year — whether it’s before the elections or between November and January during a lame-duck session of Congress.
“There’s no reward on the other side,” said Josh Holmes, a former McConnell chief of staff who advises the leader. “If you’re a Democrat motivated by this issue, you’ll never vote Republican.”
The fight for the Senate majority leads through a number of Republican-leaning states and swing states, including Arizona, North Carolina, Montana, Iowa and Georgia. Yet it also goes through left-leaning states like Maine and Colorado.
Sen. Susan Collins, a Maine Republican in a tough reelection race, said on Saturday that the Senate should not vote on a Supreme Court nominee prior to the presidential election given its “proximity.”
“In fairness to the American people, who will either be re-electing the President or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd,” Collins said in a statement.
But Sen. Cory Gardner of Colorado, who said in 2016 that the “next President ought to choose” the Supreme Court nominee, has not said what the Senate should do.
At a local townhall Saturday, Gardner avoided answering whether he would stay by his view in 2016 when he opposed filling the vacancy in a presidential election year.
“We need to make sure that we are giving time for personal reflection on this loss of an American icon,” Gardner said. “There is time for debate, there is time for politics, but the time for now is to pray for the family.”
To flip the chamber, Democrats need a net gain of four seats, or three seats if they also win the White House. They argue that appointing a Supreme Court justice who will change the ideological balance of the court from a 5-4 to a 6-3 conservative majority will also motivate their party and independents this fall. They’ve already warned that another Trump justice would undermine Roe v. Wade, the landmark case that provided a constitutional right to abortion, and dismantle the Affordable Care Act. The court will hear arguments regarding the constitutionality of the ACA on November 10, one week after Election Day.
Brian Fallon, the executive director of Demand Justice, said that his outside liberal group will spend $10 million in the Supreme Court fight.
“We will make sure Senate Republicans in key states understand the political peril they will face for trying to install a Trump supermajority on the Court in the twilight of his presidency,” Fallon said.
But outside conservative groups are galvanized by the opportunity to tilt the court’s ideological balance further to the right.
When asked about Demand Justice’s pledge to spend heavily against Trump’s pick, Carrie Severino, the president of the Judicial Crisis Network, told CNN, “We’re happy to see their 10 million, and match it, and raise it.”
In July, Grassley told CNN: “My position is if I were chairman of the committee, I couldn’t move forward with it.”
Asked on Saturday if he still stands by that sentiment, Grassley’s office instead pointed to his statement from Friday night where he honored Ginsburg but steered clear of how to replace her.
Privately, McConnell is urging his colleagues to “keep your powder dry,” urging them to not get locked into positions they might regret later, according to a person who saw a private letter the GOP leader sent to colleagues on Friday.
Many are heeding that advice. Key GOP senators up for reelection like Dan Sullivan of Alaska, Mike Rounds of South Dakota and Steve Daines of Montana were quick to tweet their condolences for the loss of Ginsburg but stopped short of weighing in on the question of how and when she should be replaced.
Two GOP senators whose votes could be at play — Mitt Romney of Utah and Lamar Alexander of Tennessee — have not indicated their preference, and their aides are declining to comment on whether they think the nominations should wait until next year.
“Her service to our country deserves great respect,” Alexander said in a Saturday statement about Ginsburg.
Some Republicans in awkward spot for past comments
Moving ahead will also put a number of Republicans in an awkward position to explain why they refused to consider the Garland nomination but are now willing to consider Trump’s pick, with far fewer days before the election. Now, McConnell argues, the situation is different because Republicans are in control of both the White House and the Senate, unlike in 2016 when a Democrat occupied the White House.
But that was not the message that Republicans vocally made at the time, namely Graham.
In 2016, Graham told his colleagues: “I want you to use my words against me. If there’s a Republican President in 2016 and a vacancy occurs in the last year of the first term, you can say: Lindsey Graham said let’s let the next President, whoever it might be, make that nomination.”
On Saturday, Graham pointed to recent comments he made saying times have changed and that he views judicial nominees differently after Kavanaugh, who was confirmed in 2018 after an emotional and vicious fight once he was accused of sexual assault as a young man, allegations that he furiously denied.
In late July, Graham told CNN that “he’d like to fill a vacancy” and “I don’t know how practical that would be. … But after Kavanaugh, I have a different view of judges.”
Tillis, too, will have to reconcile his past views — but clearly is calculating that sticking with Trump is crucial in his neck-and-neck race against Democrat Cal Cunningham in North Carolina. Speaking to conservative activists in 2016, Tillis said: “We’re not going to nominate a Supreme Court Justice until the people have spoken.”
He added, “We’re going to let the American people speak.”
On Saturday, Tillis sang a different tune.
“There is a clear choice on the future of the Supreme Court between the well-qualified and conservative jurist President Trump will nominate and I will support, and the liberal activist Joe Biden will nominate and Cal Cunningham will support, who will legislate radical, left-wing policies from the bench,” he said in a written statement.
This story has been updated with a statement from Sen. Susan Collins and comments from Sen. Cory Gardner.
Nicky Robertson contributed to this report.