Susan Collins and Lisa Murkowski matter most.
President Trump has announced he’ll nominate Brett Kavanaugh to replace the Supreme Court’s swing justice, Anthony Kennedy — setting up an enormously consequential confirmation battle over his replacement in the narrowly divided Senate for later this year.
Senate Majority Leader Mitch McConnell has already announced that he’ll hold a confirmation vote for Kavanaugh before this fall’s midterm elections. And after McConnell’s rules change last year, only a simple majority is necessary to get a Supreme Court justice through the Senate.
Still, while Republicans do currently control a majority in the chamber, it’s quite a narrow one. They have 51 seats, meaning they could theoretically confirm a new justice without any Democratic help. But Sen. John McCain (R-AZ) has been absent from Washington all year for health reasons. If McCain remains in his seat but unable to show up and vote, the Senate will effectively be composed of 50 Republicans and 49 Democrats — so, if any one Republican defects in a partisan vote, he or she can sink a nomination.
And with abortion-rights precedents that have existed for decades suddenly at stake, all eyes will be on two swing blocs: moderate Republicans and red-state Democrats.
By far the two most important senators to watch, overall, for Kavanaugh’s confirmation chances are Susan Collins of Maine, and Lisa Murkowski of Alaska. Both are pro-abortion rights. Both have also proven willing to buck their party — for instance, they sank Obamacare repeal last year.
Both also, however, voted in favor of confirming Neil Gorsuch. But the stakes were lower for that vote. Since he was filling Antonin Scalia’s seat, his confirmation meant only that the Supreme Court’s ideological makeup would be restored to approximately where it was in February 2016, before Scalia’s death. It was widely understood that, with Gorsuch, the court would still be short of the votes to overturn or badly weaken Roe v. Wade — because Kennedy, though a conservative, had sided with the liberal and moderate justices to uphold it.
Yet the replacement of Kennedy with a staunch conservative like Kavanaugh would mean the overturning of Roe is a strong possibility. This would mean a serious test for Collins and Murkowski — one they have not yet faced. Both seem to sincerely care about women’s reproductive rights. Collins in particular may be concerned about her own reelection in a purple state in 2020.
If Democrats unite against Trump’s nominee, and McCain remains in his seat but is unable to come to Washington and vote, then Kavanaugh will have to win both Collins and Murkowski’s votes. He can’t afford to lose either one of them.
As it happens, neither Collins nor Murkowski chose to attend Trump’s announcement tonight. And don’t expect them to announce their decisions anytime soon — historically, both have often tended to hold off announcing their decisions on controversial votes until close to the very end.
Though Collins and Murkowski will likely be the decisive votes here, there are a few other Republicans who are worth watching — though at this point, all appear highly likely to vote yes.
Finally, another potentially very important question is what happens with Sen. John McCain’s seat. As mentioned, since he hasn’t been able to travel to Washington all year, it currently seems that he’ll be unable to vote on the nomination.
However, if McCain were to lose his battle with cancer, or if he were to simply decide to step down for health reasons, Arizona’s Republican governor would appoint his replacement — meaning Republicans would have an extra senator. Then, McConnell could still get Kavanaugh past unified Democratic opposition even if he lost one GOP vote.
Finally, Kavanaugh’s confirmation battle will put an enormous amount of pressure on red state Democrats too. It’s likely no accident that McConnell wants to hold a vote in the fall, close to the midterms — he wants to put as much pressure on vulnerable Trump Country Democrats as possible.
The main Democrats to keep an eye on are Sen. Joe Manchin (D-WV), Sen. Joe Donnelly (D-IN), and Sen. Heidi Heitkamp (D-ND). All three face difficult reelections this fall in states President Trump won overwhelmingly. All three also voted for Gorsuch last year — though it should be noted that Gorsuch’s confirmation was assured anyway, due to unified Republican support, so the stakes were lower.
As for Sen. Claire McCaskill (D-MO) and Sen. Jon Tester (D-MT), who represent similarly deep-red states, they voted against Gorsuch last year and have generally been more likely to vote against the Trump agenda than the senators detailed above. Sen. Doug Jones (D-AL), in another very red state, will also face scrutiny in the first Supreme Court vote he’ll cast since being elected last year — though unlike the other Democrats mentioned here, he’s not up for reelection until 2020.
Overall, betting on partisanship is generally a good call for today’s polarized Senate. But this is an unusually momentous vote, with consequences that could last for a generation. Individual senators have enormous leverage here — and enormous responsibility, too.
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