Republicans are facing a decision on how hard to fight against President BidenJoe BidenCongress in jeopardy of missing shutdown deadline Senate to get Ukraine, Russia briefing on Thursday As Social Security field offices reopen, it’s time to expand and revitalize them MORE‘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, who 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, then-Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellCongress in jeopardy of missing shutdown deadline Biden’s ‘New Political Order’ Cotton says he will keep an ‘open mind’ on Biden’s Supreme Court nominee, but doubts GOP will support them MORE (R-Ky.) refused to take up Merrick GarlandMerrick GarlandCotton says he will keep an ‘open mind’ on Biden’s Supreme Court nominee, but doubts GOP will support them Trump facing legal, political headwinds as he eyes comeback Schumer finds unity moment in Supreme Court fight MORE’s nomination in 2016, 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 GorsuchNeil GorsuchOverturning Roe isn’t only about red states or abortion Biden’s Supreme Court choice: A political promise, but also a matter of justice Schumer finds unity moment in Supreme Court fight MORE, who got the support of three Democratic senators. In 2018, Brett KavanaughBrett Michael KavanaughWhat does it mean to have a Supreme Court that ‘looks like America’? Cotton says he will keep an ‘open mind’ on Biden’s Supreme Court nominee, but doubts GOP will support them Overturning Roe isn’t only about red states or abortion MORE’s initially sleepy nomination was rocked by sexual assault allegations, which he denied, but 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 GinsburgRuth Bader GinsburgSenators give glimpse into upcoming Supreme Court nomination battle White House rebukes GOP senator who said Biden’s Supreme Court pick ‘beneficiary’ of affirmative action What does it mean to have a Supreme Court that ‘looks like America’? MORE with conservative Amy Coney BarrettAmy Coney BarrettSenators give glimpse into upcoming Supreme Court nomination battle Abortion and the 13th Amendment White House rebukes GOP senator who said Biden’s Supreme Court pick ‘beneficiary’ of affirmative action MORE.
The three confirmations of justices nominated by former President TrumpDonald TrumpUS pushes for talks with North Korea after latest missile launch Democrats topped GOP in raising, spending ‘dark money’ from undisclosed donors in 2020: report Hutchinson warns fellow GOP governors: Talking about 2020 election a losing strategy MORE helped cement a reshaping of the federal judiciary for decades, with McConnell 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 BreyerStephen BreyerSenators give glimpse into upcoming Supreme Court nomination battle White House rebukes GOP senator who said Biden’s Supreme Court pick ‘beneficiary’ of affirmative action What does it mean to have a Supreme Court that ‘looks like America’? MORE’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 GrassleyChuck GrassleySenate Republicans press federal authorities for information on Texas synagogue hostage-taker Small ranchers say Biden letting them get squeezed These Senate seats are up for election in 2022 MORE (R-Iowa), the top Republican on the 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 whoever Biden nominates.
But Sen. Susan CollinsSusan Margaret CollinsSenators give glimpse into upcoming Supreme Court nomination battle GOP governor pushes back on Trump suggestion of pardons for Jan. 6 rioters if elected Sunday shows – Biden Supreme court nominee, Russia sanctions dominate MORE (R-Maine), who Senate Judiciary Committee Chair Dick DurbinDick DurbinBiden calls for Taliban to release American hostage before legitimacy recognized Senators give glimpse into upcoming Supreme Court nomination battle Sunday shows – Biden Supreme court nominee, Russia sanctions dominate MORE (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 GrahamLindsey Olin GrahamSenators give glimpse into upcoming Supreme Court nomination battle Trump calls for ‘biggest protest we have ever had’ if prosecutors ‘do anything illegal’ in targeting him White House rebukes GOP senator who said Biden’s Supreme Court pick ‘beneficiary’ of affirmative action MORE (R-S.C.) are the only two Republicans remaining in the Senate who voted for President ObamaBarack Hussein ObamaWhat does it mean to have a Supreme Court that ‘looks like America’? Cotton says he will keep an ‘open mind’ on Biden’s Supreme Court nominee, but doubts GOP will support them Can we sue our way to climate action? MORE’s Supreme Court nominees. They, along with Sen. Lisa MurkowskiLisa Ann MurkowskiRepublicans must stop sabotaging voting rights Alaska becomes latest battleground in GOP civil war McConnell: I’m going to give Biden’s Supreme Court nominee ‘a fair look’ MORE (R-Alaska), have also voted for more of Biden’s judicial nominees than the rest of the caucus, making them viewed as the most likely of the caucus to vote for Biden’s nominee.
Each previously voted for U.S. Appeals Court Judge Ketanji Brown Jackson, viewed as the frontrunner to replace Breyer, while Rep. Jim ClyburnJames (Jim) Enos ClyburnConfirmation bias: The fighting has already begun, and Biden hasn’t even named a nominee Clyburn calls for full-court press on voting rights Senate set for muted battle over Breyer successor MORE (D-S.C.), the House Democratic whip, has predicted that Graham, Sen. Tim ScottTimothy (Tim) Eugene ScottSunday shows preview: Justice Breyer announces retirement from Supreme Court White House confirms Judge J. Michelle Childs under consideration for Supreme Court Clyburn predicts Supreme Court contender J. Michelle Childs would get GOP votes MORE (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 KDLL, an Alaska radio station, 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 SchumerChuck SchumerBiden’s ‘New Political Order’ The Hill’s Morning Report – Democrats sense opportunity with SCOTUS vacancy Schumer finds unity moment in Supreme Court fight MORE (D-N.Y.) eyeing a timeline similar to the 30 days between when Trump announced Barrett’s nomination to 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 TillisThomas (Thom) Roland TillisCheslie Kryst, former Miss USA, dead at 30 Senate Republicans press federal authorities for information on Texas synagogue hostage-taker Bipartisan Senate group discusses changes to election law MORE (R-N.C.) 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 CornynJohn CornynSenators close in on Russia sanctions deal Overnight Defense & National Security — Pentagon tells Russia to stand down Ukraine sent letter to senators seeking specific Russia sanctions, military assistance MORE (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 HawleyJoshua (Josh) David HawleyBriefing in brief: WH counters GOP attacks on planned SCOTUS pick Manchin and Sinema must help Biden make the Supreme Court look more like America Senate Republicans press federal authorities for information on Texas synagogue hostage-taker MORE (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 GOP 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.”