By Rich Lowry & John McCormack
Saturday, September 26, 2020 6:30 AM
What’s been most remarkable so far about Republican senators lining up to try to fill the Supreme Court vacancy is the lack of drama. There hasn’t been a key meeting or event, or a fence-sitter who, after a long bout of public agonizing, promised to provide the decisive vote. Instead, the votes needed to move ahead have fallen in place with relative ease.
“It’s funny,” a Republican senator says. “A lot of it came together before we got together to talk about it formally.” By the time Republican senators had returned to Washington and gathered together for the first time since Ruth Bader Ginsburg’s death — at a lunch on Tuesday — Mitt Romney had announced he was on board.
A White House aide calls the consolidation “a natural reaction,” both to the poor treatment of Brett Kavanaugh during his confirmation and the realization that historical precedent strongly favors a Senate majority’s confirming the election-year nominees of presidents of the same party. (The aide cited the widely circulated piece by Dan McLaughlin setting out the history.)
“The historical data made it clear that was what the precedent was,” says the senator. “That made it very easy.”
Another Republican senator puts it this way: “We all believe in putting conservative judges on the Court and we weren’t going to be duped by the Democratic process argument when at root we all know what the Democrats would do it if they had the chance.”
He adds: “There’s no way that the wobbly senators would be able to answer their voters if they passed up this opportunity.”
There is still work to do. With the formal announcement of Amy Coney Barrett’s nomination coming later today, Republicans will need to commence the P.R. battle, and they will have no margin of error in terms of the timing. Senate majority leader Mitch McConnell has yet to commit to a pre-election vote. Although Amy Coney Barrett is presumably already thoroughly vetted, there is always the chance of nasty surprises.
There hasn’t been any such surprise yet in the Senate. When Republicans voted to change the rule for confirming Supreme Court justices to require 51 votes in response to the 2017 Democratic filibuster of Neil Gorsuch, McConnell “built support over many weeks, and did it in a lot of settings,” says the first Republican senator.
The RBG vacancy didn’t require any such campaign. “Over the last year, McConnell laid the foundation about what to expect if this were to occur,” says one Republican strategist. “There wasn’t an 11th-hour staff meeting. They already had a pretty good idea of where they’re going to end up.”
In September 2019, McConnell told reporters that Senate Republicans would “absolutely” fill a vacancy if it arose in 2020 — which would occur with the Senate and White House under the control of the same party, unlike the 2016 vacancy following the death of Justice Scalia. In 2016 there hadn’t been a consensus within the Republican caucus about what blocking the nomination of Merrick Garland meant. Most spoke at the time about the need for the voters to decide. A few senators explicitly said they’d hold open an election-year vacancy even if Republicans were in control of the Senate and the White House — although several simply said they were exercising their constitutional right to withhold consent. In 2016, McConnell had repeatedly emphasized the point about divided government. In 2020, there would be no deadlock for the voters to break.
Still, McConnell has only three votes to spare, and after news broke of the death of Justice Ginsburg, he moved swiftly to unite the Senate GOP caucus. He released a statement on Friday night saying that a Trump Supreme Court nominee “will receive a vote on the floor of the United States Senate.” In a “Dear Colleague” letter the same night, McConnell made the case that there was historical precedent for confirming a justice and that there was enough time to do so. It took only 19 days, McConnell noted, between the announcement of John Paul Stevens’s nomination and his confirmation to the Supreme Court in 1975.
“Over the coming days, we are all going to come under tremendous pressure from the press to announce how we will handle the coming nomination,” McConnell wrote. “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote, I urge you all to keep your powder dry. This is not the time to prematurely lock yourselves into a position you may later regret.”
Last weekend, McConnell quietly worked the phones. He stays in close touch with the senators who are likely to be on the fence about tough votes, which is roughly the same pool of people each time. The leader, according to a Senate watcher, talks about the 80/20 rule of neckties — you wear 20 percent of your ties 80 percent of the time. The same applies to the potential fence-sitters.
He has built relationships of trust with these senators; he knows their political needs and is sensitive to them. He gave Susan Collins, for instance, a lot of running room on the RBG vacancy, and she came out against filling it before the election.
McConnell is also tight-lipped about his conversations with his colleagues, giving them confidence that what they tell him won’t become news. “Giving something to the New York Times or the Politico gossip page doesn’t get you the vote of Cory Gardner,” says the Senate watcher. “Having a relationship with Cory Gardner and knowing what Cory Gardner needs gets you the vote of Cory Gardner.”
“He’s not focused on winning the news cycle today,” he adds. “McConnell wants to win the court for the next 40 years.”
If the majority leader is talking to his members, he’s also talking to Trump. The president has been relatively restrained on the Court vacancy, at least when it comes to sniping at Republicans. He hasn’t blasted Collins for being a “no” and didn’t browbeat Gardner prior to the Colorado senator’s statement in favor of moving forward. “You have to see McConnell’s hand in this,” says the Senate watcher.
“Last weekend, McConnell talked to Trump multiple times, and he suggested Amy Coney Barrett as a choice,” says the Republican strategist. The case for the appeals-court judge and former Notre Dame law professor is that she’d be exactly the type of justice conservatives want — an originalist and a textualist — who was battle-tested in her 2017 appeals-court confirmation hearing.
That hearing was particularly intense because Barrett was widely seen as a likely first-choice Supreme Court nominee of any Republican president — whether that’s “President Tucker Carlson or President Mitt Romney,” says the GOP strategist. Barrett’s fellow former Scalia clerks have said Barrett was the late justice’s favorite of the bunch.
It wasn’t surprising that Alaska senator Lisa Murkowski and Maine’s Susan Collins, two moderate pro-choice Republicans, would balk at moving swiftly toward a vote before the election. Murkowski voted against Kavanaugh in 2018, and Collins is up for reelection in a blue state in November. But in order to form a majority against a confirmation vote, they would need two companions.
All eyes turned to Lamar Alexander of Tennessee, the Senate institutionalist who is retiring from the upper chamber at the end of the year. But in the end, it didn’t look like a tough call for Alexander. In 2016 he supported the decision to block the confirmation of Merrick Garland. “Under our Constitution, the president has the right to nominate, but the Senate has the right to decide whether to consent at this point in a presidential election year,” Alexander said in 2016.
“Sen. McConnell is only doing what the Senate majority has the right to do and what Senate Democrat leaders have said they would do in similar circumstances.”
On Sunday afternoon, Alexander announced he was ready to move ahead. “No one should be surprised that a Republican Senate majority would vote on a Republican President’s Supreme Court nomination, even during a presidential election year,” Alexander said in a statement.
The second Republican senator mentioned above calls Alexander “the big cowbell” because if he were a “no,” he could potentially bring other Republicans along with him. That’s not true of Romney.
Meanwhile, Cory Gardner, one of the most vulnerable Republicans in the country in this year’s Senate races, quickly announced his support for moving ahead. A source who talked to Gardner last weekend says there was “never any doubt” where he’d come down; it was just a matter of the timing of his announcement. The source says Gardner didn’t want to overthink the politics in what’s going to be a “nip-and-tuck race” regardless, and is “prepared to go out with his boots on.”
The Republican strategist says it made sense for Gardner to come out publicly right away and get all the criticism over with rather than stretch it out by staying on the fence. With regard to the decision-making of Gardner and other senators, the strategist points out that this is a defining vote that will long be remembered, even when Trump is gone: “You could launch, fund, and win a Republican Senate primary on this vote alone.”
After Alexander came out as a yes, the only real question was what Mitt Romney would do. He couldn’t kill a nomination outright, but without Romney’s support, McConnell would have no room for error. With three Republican defections, Vice President Mike Pence would need to break a 50-50 tie to confirm a new justice.
Romney tends to be relatively introspective about big political calls. He takes in a lot of information but typically doesn’t reach out to take the temperature of a large number of people by phone. He talks to family, and if it’s a particularly momentous decision, he’ll pray. In this case, according to an aide, Romney spoke last weekend to a number of Democratic and Republican colleagues, including Mitch McConnell, but there was not “a singular specific conversation that he had that was especially influential on his thinking.”
The Utah senator had famously bucked his party before. In the February impeachment trial, Romney voted to convict and remove Trump from office — the first time in history a senator voted to convict a president of the same political party.
But the decision to move toward confirming a new Supreme Court justice was a “very distinct issue from impeachment,” says the Romney aide. It was about a “long-held principle, long-held priority” and not “a political question of whether or not to stand with Trump.”
According to a source familiar with Romney’s thinking, he was initially reluctant about moving toward a vote. But Romney kept his powder dry as he deliberated over the weekend and ultimately came to the conclusion that historical precedent and the Constitution favored a vote.
The question of hypocrisy over the Garland blockade didn’t directly apply to Romney — who was not a senator in 2016 and never offered a particular interpretation of the so-called “Biden rule.” Nevertheless, when he was asked about Garland on Tuesday, Romney told reporters that in “the circumstance where a nominee of a president is from a different party than the Senate then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that. And the decision to proceed now with President Trump’s nominee is also consistent with history.”
Asked if he’d vote to confirm a nominee after Election Day if Biden wins, Romney said: “I’m not going to get into the particulars of who wins and who doesn’t. There are many possibilities that we could go through. I’ve indicated that what I intend to do, is to proceed with the consideration process and if a nominee actually reaches the floor, then I will vote based upon the qualifications of that nominee.”
Can they get it done before Election Day? It’s the biggest question looming over the nomination.
Last weekend, Missouri senator Roy Blunt said on Face the Nation that everything would have to work “pretty precisely” for a vote before then.
“My current belief is we will vote on this with time to spare before the election,” Blunt tells National Review. “Depending on who the president nominates and how much time the background check completion takes, we have plenty of time to do the hearings and have the vote before the election unless there’s some complication.”
The FBI background check shouldn’t be a problem. “It would not take long, perhaps only a few days, to complete a background investigation into someone who has recently been confirmed to a high office such as the Court of Appeals,” according to Gregg Nunziata, who worked as chief nominations counsel for the Senate Judiciary Committee during the confirmation hearings of John Roberts and Samuel Alito. “In that case the work would simply involve updating an already comprehensive file.”
Democrats are already looking into delay tactics and procedural tricks to push a vote past the election, but Republicans are prepared to get to a confirmation vote.
Another big unknown is how the Supreme Court fight affects the outcome of the November elections. “If Democrats try to turn her into a villain from a Dan Brown novel, it’s going to get our base fired up,” the GOP strategist says of Barrett. A Supreme Court nominee could also help Republicans because “it reminds people there’s more to the Republican Party than Donald Trump.”
How it all plays out from here will certainly be consequential, and likely even involve a lot of drama. But so far in the Senate Republican caucus, there’s been little.
No comments:
Post a Comment