WASHINGTON — The coming battle over a Supreme Court nominee promises to be a bruising one.
Republicans are eager for conservatives to gain a firm majority on the court. Democrats are voicing alarm about what the new justice could mean for charged issues such as abortion rights and gay rights. The stakes are enormous, and advocacy groups that don’t have to unveil their donors are spending heavily to shape the fight.
President Donald Trump’s top contenders for the vacancy appear to be federal appeals judges Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh and Raymond Kethledge.
Trump planned to announce his pick Monday night. Regardless of his choice, it’s likely that the closely divided Senate will be holding a momentous confirmation vote just weeks before the midterm election.
A look at what to expect:
FINDING THE VOTES
Republicans may have a narrower margin for error than they did when the Senate confirmed Trump’s first Supreme Court nominee, Neil Gorsuch, by a vote of 54-45 in April 2017.
Democratic Sen. Doug Jones of Alabama has replaced Republican Sen. Luther Strange, cutting the GOP’s Senate majority to 51-49. Meanwhile, Republican Sen. John McCain of Arizona is battling brain cancer and has not been back to the Capitol since December.
That increases the focus on two Republicans — Sen. Susan Collins of Maine and Lisa Murkowski of Alaska. Both support a woman’s right to have an abortion and will be looking for assurances that the nominee would not overturn the Roe v Wade decision establishing abortion rights. Trump pledged in 2016 that he would be “putting pro-life justices on the court.”
On the Democratic side, the focus will be on Sens. Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana and Joe Manchin of West Virginia. All three voted to confirm Gorsuch and are up for re-election in states that Trump won handily. Whatever they decide will upset a large group of voters in their home states.
If Collins and Murkowski vote “no” and Democrats all vote “no,” the nomination would be blocked. If McCain were to miss the vote, only one GOP defection would be needed to block the nomination if all Democrats were opposed.
Democrats are still stinging from Republicans refusing to even grant a hearing to President Barack Obama’s choice to serve on the Supreme Court, Merrick Garland.
They are calling on Senate Majority Leader Mitch McConnell, R-Ky., to wait until after the November election to schedule a hearing and vote. McConnell has rejected that possibility, saying the decision to not fill the vacancy under Obama was prefaced on it being a presidential election year.
Democrats say McConnell is being hypocritical in moving forward with the nomination. While that argument won’t sway Republicans, their strategy could stiffen Democratic resolve to oppose the nominee. Liberal advocacy groups are challenging Minority Leader Chuck Schumer, D-N.Y., to keep the Democrats united.
Much of the groundwork for a successful confirmation comes in private meetings that the nominee will have with individual senators in the coming weeks. For lawmakers who are not on the Judiciary Committee, it may be their only chance to talk with the nominee personally before a final vote. Gorsuch met with nearly three-quarters of the Senate in advance of his hearings.
The process is arduous, with the private meetings giving way to days of testimony before the Senate Judiciary Committee, which has 11 Republicans and 10 Democrats.
Hearings for the most recent nominees to the Supreme Court have lasted four or five days, though there were 11 days of hearings for Robert Bork’s nomination in 1987.
On average, for Supreme Court nominees who have received hearings, the hearing occurred 39 days after the nomination was formally submitted, according to the Congressional Research Service.
The Judiciary Committee need not approve the nomination for it to advance. A negative recommendation or no recommendation merely alerts the Senate that a substantial number of committee members have reservations.
THE FIGHT OUTSIDE THE CAPITOL
Before the president has even made his announcement, advocacy groups are making clear they will play an important role in the coming fight.
Groups that support abortion rights are planning a “Day of Action” for August 26, the anniversary of the 1920 adoption of the 19th Amendment giving women the right to vote.
The liberal advocacy group Demand Justice will spend $5 million on ads through September and began airing spots Thursday in Maine and Alaska aimed at pressuring Collins and Murkowski. “Why won’t she rule out voting for Trump’s anti-choice picks?” both ads ask.
It also plans to run ads next week in Manchin’s, Donnelly’s and Heitkamp’s home states with a softer tone, asking them to continue protecting people with pre-existing health conditions by opposing a nominee who’d threaten that.
Meanwhile, the conservative Judicial Crisis Network is targeting vulnerable Democratic incumbents in its ad campaigns. The deep-pocketed group advertised against Senate confirmation of Garland and spent millions more advocating for Gorsuch.