The Senate is taking America for one last turbulent ride before the election.
President Donald Trump’s Saturday announcement of his Supreme Court pick will spark a lightning-quick confirmation attempt by Senate Republicans that now seems almost certain to occur before the election. After Trump’s reveal, Senate Judiciary Chair Lindsey Graham (R-S.C.) is expected to quickly lay out a hearing schedule for October, and the nominee will begin meeting with individual senators next week, according to senators and aides.
Provided no surprising information is unearthed that upends the nomination, Republicans and Majority Leader Mitch McConnell are set to make history: Never has a Supreme Court justice been confirmed so close to a presidential election. Other than two dissenting GOP senators, no one thus far in the 53-member conference is arguing to wait for a lame duck session — let alone the next Congress — to hold a confirmation vote. McConnell only needs a simple majority.
“There’s not much of a margin for error. But we don’t have much error,” said Sen. Kevin Cramer (R-N.D.). “We have our [party] meetings and no one has ever gotten up and made the case for why we should do this after the election.”
“There’s going to be plenty of time, plenty of time for both the nominee and the committee for questions, plenty of time to vote. I’m not worried about the timing,” added Sen. John Kennedy (R-La.), who serves on the Judiciary Committee. “I’m obviously not Mitch McConnell, but I think we’ll have a vote before the election.”
The two leading contenders for the nomination, Amy Coney Barrett and Barbara Lagoa, are both Circuit Court judges who have already been confirmed by most sitting Republican senators. Republicans argue that those candidates are almost pre-vetted, allowing them to be confirmed more quickly than someone unknown.
Confirming either one would lock in a conservative majority on the Supreme Court for a generation. And it would avoid any risks that might come with a lame duck confirmation, such as losing a Senate seat in Arizona that narrows the GOP majority or conducting a confirmation after being defeated in the election.
Democrats counter that a Supreme Court confirmation deserves more scrutiny than a Circuit Court seat. After all, President Barack Obama’s nominee Merrick Garland had been confirmed as a Circuit judge with a big bipartisan vote, but McConnell blocked his high court appointment in 2016.
Barrett in particular could move quickly given her vetting for a vacant Supreme Court seat in 2018 and her rock-solid support on the party’s right wing. Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine), the two GOP members most supportive of abortion rights and likely to be skeptical of Barrett’s socially conservative views, are the only two in the party opposed to a quick confirmation. Since Trump and GOP leaders don’t need either centrist Republican senator, Barrett pretty much already has the 51 other votes locked up, pending any new revelations.
Of course, no senators planned for Brett Kavanaugh to be accused of sexual assault during his Supreme Court fight in 2018. And Democrats are sure to do whatever they can to slow down the nomination, both through their limited procedural tools and through the vetting process in the Judiciary Committee. A delay of just a few days could make a big difference on timing for a vote with Election Day barely a month away.
But getting Republicans to slow down at all will prove to be a herculean task. A Democratic senator, who asked for anonymity to explain a lengthy recent private conversation with Graham, said there’s simply no talking them out of it right now.
“He and Trump and McConnell are fully committed to barreling ahead,” the senator said. The senator said Democrats’ message will be this: “Push back, push back, push back, and say, ‘we shouldn’t be doing this. We ought to be delivering relief, we ought to be delivering a response to the pandemic.'”
Senate Republicans are preparing for Democrats’ dilatory tactics, including forcing a series of roll call votes on the Senate floor that Republicans would have to win to keep the nomination moving forward in the Judiciary Committee. That could spoil campaign season for incumbent GOP senators, and McConnell has already told his members to be prepared to be in D.C. to bat down floor votes from the 47-member Democratic minority.
“I understand from the leader that there might be multiple votes that require 51 people present in the Senate chamber, so there’s going to be a premium on people actually being physically present,” said Sen. Josh Hawley (R-Mo.). McConnell “has told us that there might be a lot of that back and forth that will require physical voting.”
McConnell eliminated the filibuster for Supreme Court nominees in 2017, so Democrats are limited in what they can do to stall. They can try to cut off committee hearings early, for example, with floor votes. But as long as McConnell has a few more members in town than Senate Minority Leader Chuck Schumer, Democrats can’t win unless they get Republicans to think twice about moving forward.
Asked whether he doubted McConnell could get it done in the next month, Senate Minority Whip Dick Durbin (D-Ill.) replied: “Give him an hour on the floor.”
Sen. Debbie Stabenow (D-Mich.) said the only way to prevail is to treat the nomination like Democrats’ battle against Obamacare repeal and bring the fight outside the halls of the Capitol and into competitive Senate races.
“People across the country have 30 days to reach out to Republican members of the Senate and tell them not to do this,” Stabenow said. “I know it’s a shorter timeframe, but I don’t start from the assumption that it’s impossible to have four people stand up.”
Republicans say they have some slack built into their schedule, which currently points to a late October confirmation. But not much. And Democrats expect little time to mount their pressure campaign.
“This outcome is baked. We know what’s going to be. It’s already baked in,” said incumbent Sen. Doug Jones (D-Ala.), who opposed Kavanaugh and is the most vulnerable senator this fall. “That was not the case with Kavanaugh.”
A replay of the weeklong delay that took place on Kavanaugh’s confirmation for an FBI investigation into sexual assault allegations, for example, would probably push a confirmation past the election. And there’s little appetite for that among this year’s Senate GOP, which says that unlike Kavanaugh, Trump’s nominee already has the votes to be confirmed.
“It will all have to fall into place. But I think a lot of the variables were eliminated, especially in terms of who may or may not vote for [her]. That’s pretty clear,” said Sen. Mike Braun (R-Ind.). “That’s a little different than it was back with Kavanaugh.”