President Donald Trump and his Republican Senate allies are racing to choose and confirm a new justice in time for the next Supreme Court session Oct. 1 — an accelerated pace that could stymie opposition researchers and further pressure vulnerable Democrats up for re-election.
Trump, moving with unusual speed after Justice Anthony M. Kennedy announced his retirement Wednesday, told reporters Friday that he is considering five to seven candidates, including two women. He will interview one or two potential nominees at his Bedminster, N.J., golf club this weekend, he added, and announce his choice July 9.
Even before he selects anyone, the president also quickly sought to court Senate support for what is certain to be a hard-fought confirmation battle, hosting six mostly moderate senators from both parties at the White House on Thursday evening. Senior aides called more than a dozen others to discuss the impending vacancy.
Trump’s fast clip is possible in large part because he is sticking with a previously compiled list of 25 potential nominees, most of whom he named during his campaign. It is a list that has been vetted by conservative groups and thus those included are considered unlikely to surprise senators with some scandal or variance from party ideology, including on abortion rights.
All but one of the individuals on the list — Republican Sen. Mike Lee of Utah — are currently judges on state or federal courts.
“He’s an outstanding talent,” Trump said of Lee, leaving unclear whether the senator is among the finalists. “I actually saw him on television last night, where he said he would love the job. You know, usually, they don’t say that.”
The reliance on the pre-vetted list increases the likelihood that the nominee will oppose abortion rights, the most critical issue for both parties. Trump, who as a presidential candidate said he would only name justices opposed to the 1973 Roe vs. Wade decision that created a constitutional right to abortion, told reporters on his flight to New Jersey and in a separate television interview that he would not ask candidates about that ruling.
“They’re all saying, ‘Don’t do that, you don’t do that, you shouldn’t do that,’” Trump said in a taped interview set to air on Fox News on Sunday. “But I’m putting conservative people on, and I’m very proud of Neil Gorsuch. He has been outstanding. His opinions are so well written and so brilliant. I’m going to try and do something like that.”
Senate Majority Leader Mitch McConnell told Fox News on Thursday night that the Senate “should be able to work our way through the confirmation process sometime before early fall — hopefully in time for the new justice to begin the fall term of the Supreme Court,” which starts Oct. 1.
Marc Short, Trump’s legislative affairs director who has close ties to the conservative Koch brothers’ political network, echoed that timeline Friday, citing the pre-vetted list that Trump also used last year to select Gorsuch to replace the late Justice Antonin Scalia.
“He knows the caliber on the list,” Short said on MSNBC. “They were interviewed once before the last go-around, so I don’t think this is going to take a lot of time.”
Trump’s timeline means he will introduce his pick just before he leaves for a series of high-profile meetings in Europe. McConnell’s spokesman, Don Stewart, said the Senate would hold hearings in August — it was already planning to forgo the usual summer recess then — and vote in September.
Democrats say that as the Senate minority they are all but helpless to affect the calendar, and believe McConnell will use it to maximize his tactical and political advantage — just as he did in 2016 to thwart Senate confirmation of President Barack Obama’s nominee for the Scalia seat that later went to Gorsuch.
With Republicans holding a narrow 51-49 majority — 50-49 if the ailing Sen. John McCain of Arizona continues to be absent — Democrats’ hope of defeating a nominee rests on keeping its senators unified in opposition, a tall order itself, and to be joined by at least one Republican defector.
The quick time frame could make it more difficult for Democrats. It will be harder for them to do the thorough opposition research that could unearth damaging personal foibles or controversial legal writings of the sorts that have given prior nominees trouble.
Two Republicans whom Democrats are looking to for potential support — Sens. Susan Collins of Maine and Lisa Murkowski of Alaska — were among those who visited the White House Thursday. Both favor abortion rights and could face a difficult choice if Trump chooses a nominee who is seen as certain to become the decisive vote to overturn or effectively gut Roe vs. Wade.
Collins and Murkowski have told reporters that they would like Trump to look beyond his list of potential nominees, suggesting their discomfort with the candidates.
“While I recognize that it is inappropriate to ask a nominee how he or she would rule in any future case, I would certainly ask what their view is on the role of precedent and whether they considered Roe vs. Wade to be settled law,” Collins told The New York Times.
Democrats are hardly assured of staying united, with 10 senators up for re-election in states Trump won. One of those, Sen. Joe Manchin III of West Virginia, has a history of opposing abortion rights. He, along with Sen. Heidi Heitkamp of North Dakota, who generally favors abortion rights, and Joe Donnelly of Indiana, were in the group invited to the White House Thursday.
All three voted to confirm Gorsuch and expressed openness to Trump’s choice this time.
“The president assured me that he wants to look at someone that could gain a wide amount of support, so we will continue to work with this administration,” Heitkamp said in a video she recorded outside the White House and posted on Twitter.
A Senate Democratic leadership aide said the party hopes to build opposition early, before Trump names a candidate, under the assumption that he will select a nominee who is widely seen as opposing both abortion rights and the preservation of the Affordable Care Act. Nominees generally decline to comment on issues that might some day come before the court, though the jurists on Trump’s list have a record that could provide clues.
Unlike with abortion rights, the next justice is not likely to swing the balance in deciding the future of the Affordable Care Act. The court has already upheld the law by a 5-4 majority that had conservative Chief Justice John G. Roberts joining the Court’s four liberal members. Because the law has support in West Virginia and some other conservative states, Democrats say it could be used as a weapon against a conservative nominee.
Yet theirs is an uphill fight. With Republicans planning a confirmation vote weeks before midterm elections, Senate Democrats on the ballot will be forced either to tell Democratic activists “Ha, ha, ha, I’m not with you” or tell swing voters “I’m an obstructionist,” said a Democratic strategist, who requested anonymity to discuss party thinking.
McConnell said he believes Democrats are “ready to fight no matter who the nominee is,” yet he also said that Republicans expect to pick off some Democrats.
“We’re not assuming this is just going to be a straight party-line vote,” he said.
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