Supreme Court state-of-play on Capitol Hill
President Donald Trump will announce his Supreme Court nominee at 9 p.m. As of this moment, nobody on Capitol Hill knows the selection, according to several senior aides (which, of course, makes sense given the president himself said he hadn’t finalized the selection as of Sunday evening).
Every Senate Republican who wanted to provide their opinion or lobby for a candidate has had an opportunity to do so (and most have taken that opportunity, aides say). Invites have gone out to senators to attend the White House announcement, two aides tell CNN.
But once the selection is made, all that matters is the roughly eight- or nine-week countdown to a vote on the Senate floor.
Bottom line: The coming days will be all about deep dives into the record of Trump’s selection, but also an intensive outside game by affiliated groups in both parties to lock in the contours of what will be a vicious fight. Monday night’s announcement may be in prime time, but it will serve solely as a brightly lit, nationally televised precursor to the real battle ahead.
Millions of dollars will be spent by both sides. Thousands of pages of documents — ranging from details on cases and authored legal articles to public comments, education experience, past work in previous administrations or on Capitol Hill — will be pored over by congressional staff, outside groups and reporters as the days move toward the confirmation hearing. The pressure on a select group of senators will be extreme. The outcome will have an effect not just in November, but far more importantly, on the highest court in the land for quite possibly decades to come.
What’s ahead, in a quote:
“We’re prepared for an all-out war,” one GOP operative planning to work on the confirmation effort said. “The full machinery of the Republican Party is going to kick into high gear. And I have no doubt the other side will deploy the same.”
What to watch for on Capitol Hill:
Initial reactions will be important, but the key senators in play won’t tip their hands until they have ample time to study the pick, multiple aides say.
That means close attention should be paid to the team assembled by the White House — who the pick’s “Sherpa” will be on the Hill, how initial meetings are set up, with who and when, etc.
As a guide, just go back to 2017. Former Sen. Kelly Ayotte, a well-liked member of the chamber who was defeated the previous November, served as Gorsuch’s Sherpa, and the outside and inside teams responsible for shepherding the nomination were given high marks by Republicans.
“Can’t go wrong replicating what they did with Gorsuch,” one GOP aide said when asked how the White House should handle this nomination.
But — and this is important:
This isn’t the Gorsuch nomination. Gorsuch was replacing a conservative justice. This nominee would replace a swing vote — and tilt the court toward conservatives for years to come.
A numbers reminder:
This state of play still stands and this is your best guide.
Put in shorthand, Republicans hold a 51-49 majority in the Senate. Republican aides make clear there is no expectation Sen. John McCain, who remains in Arizona fighting cancer, will return for any vote. That means they can’t afford to lose a single Republican if Democrats are unified in their opposition to Trump’s pick.
What it also means: If McConnell can keep his conference together, there isn’t anything Democrats can do to block the confirmation.
What’s coming: A massive, dual-pronged pressure campaign — one targeting Sens. Lisa Murkowski, of Alaska, and Susan Collins, of Maine, and one targeting moderate, red-state Democrats, is already teed up (some ads have already started running in key states). Groups on both sides will pour cash into the effort.
How much will be spent:
“Tens of millions of dollars,” was the estimate of one of the players in the outside effort. That doesn’t just mean television ads — that means rallies, marches, grassroots efforts — everything that can be done to try and persuade, cajole and pressure will be deployed.
-Judicial Crisis Network, a key player in confirming Gorsuch that has already been up with television ads, will be up with another buy targeting red state Democrats tonight. Keep an eye on Koch-backed Americans for Prosperity to also throw a seven-figure sum into the battle.
-Demand Justice, the new-ish Democratic-aligned group, is planning to spend millions on its side. Keep an eye on NARAL and other aligned groups on the left starting to spend as well. Groups opposed to the selection have also already scheduled a rally at the Supreme Court opposing the pick Monday night at 9:15 p.m.
A simplified version, previewed by lawmakers and aides:
Republicans will point to the nominee as a conservative who will hew closely to the Constitution and will be in the mold of Gorsuch, whose time on the court has already won plaudits in the party.
Democrats have made clear their fight will center primarily on two things: abortion and health care. The former due to a potential swing vote on Roe v. Wade. The latter due to the court’s role in defining the parameters of the US health care system in the years ahead.
Republicans: keep the train on the tracks, the party together and possibly pick off a few Democrats.
Democrats: drive a grassroots frenzy of opposition, given the stakes of replacing someone like Justice Anthony Kennedy, to unify their caucus and peel off at least one GOP senator.
The players on the Hill:
Senate Majority Leader Mitch McConnell:
The New York Times and John King have very good rundowns of the role McConnell has played behind the scenes in the past few weeks.
McConnell allies I’ve spoken to make clear: he’s not advocating for any one selection (though he certainly would’ve been pleased had Amul Thapur been in the final four). He’s providing advice on the dynamics of the Senate. McConnell is firmly in the “how do I secure 50 votes” position now, regardless of the selection. And that means, in his view, there are two candidates — Thomas Hardiman and Raymond Kethledge — who would have the clearest path to confirmation, for several reasons, ranging from depth of past work/paper trail (in Brett Kavanaugh’s case) and awareness of the two generally pro-choice senators in his conference (in the case of Amy Coney Barrett).
The clear goal, according to several aides, is to lock in all 50 GOP senators in support. Any Democrats that come along would be an added bonus. But one ally made clear “You simply can’t take anything for granted at this stage.”
Senate Democratic Leader Chuck Schumer:
It’s fair to say nobody in this fight has a tougher task. The Democratic leader needs to keep his caucus together — even as several face potential electoral fallout for voting against the nominee — while helping to persuade at least one Republican to vote against a pick that will tilt the court to the right, all as he attempts to mollify an agitated base that questions whether Democrats are adequately fighting Trump and McConnell.
He faces extreme pressure from the liberal grassroots, outraged by then-President Barack Obama’s 2016 selection never getting a hearing, to utilize any procedural tool possible to all but shut down the chamber to block the nomination (this is both unlikely and questionable in its efficacy), all while balancing the several moderate senators who face their own individual pressures.
Schumer has made clear in his comments and writing up to this point that the clearest way to blocking the pick is through a groundswell of outside pressure — and given the stakes, that pressure will certainly come to bear to some degree. Whether it will reach the critical mass to have Schumer’s intended effect is still a very open question.
Worth noting: Democratic leadership and the key (and moneyed) outside groups have been working closely to coordinate in the past week, sources say.
Think precedent. Think stare decisis (several GOPers have flagged the Roberts/Specter exchange in 2005 as a potential model for any nominee.) Why? Think Roe v. Wade (or Casey v. Planned Parenthood.) With Democrats making clear they view this pick as a referendum on Roe v. Wade — and given the positions of Collins and Murkowski on that serving as an issue that is settled — an inordinate amount of time in the weeks ahead will be spent on not just where the nominee stands on the issue (it’s unlikely any nominee will shed much light on that front, several aides note), but more importantly, where these two senators believe the nominee stands on the issue. The public hearing will matter, yes. But the private meetings with these two senators may matter far more.
Needless to say, Democrats aren’t hesitating — they view Collins and Murkowski as the two targets to peel off from McConnell’s majority. And they vote abortion rights — and health care in general — as the pathway to possibly do it.
One note on this front: Murkowski and Collins were heroes to the left when they opposed the Obamacare repeal effort. Then they were castigated by the same group when they voted in favor of the tax overhaul. It’s important to see the differences in those two issues — Collins and Murkowski align far more with GOP orthodoxy on taxes (not to mention the inclusion of ANWR in the tax law in Murkowski’s case) than on health care. This is not an insignificant reason why Democrats are so sharply focusing their counter-arguments what a new justice may mean for the US health care system.
As to the pressure? Let’s just say this isn’t the first rodeo for either. As Sen. Marco Rubio put it plainly: “Listen, Lisa Murkowski and Susan Collins can handle pressure. These are very serious, professional people with strong legislative records.”
Sens. Joe Donnelly/Joe Manchin/Heidi Heitkamp:
All three of these senators voted to confirm Neil Gorsuch. All three of these senators face re-election races in states Trump won by double-digits in 2016. All three of these senators were invited to the White House before the July 4 recess week to meet with the President on, among other things, the Supreme Court selection process. All three have made clear they are keeping an open mind on the selection, and all three are very much in play to support the nominee.
Sens. Claire McCaskill/Bill Nelson/Doug Jones:
McCaskill and Nelson both face tough re-election battles in Trump-won states. Jones hails from ruby red Alabama. All three are keeping their options open. GOP aides are looking at Nelson as the most likely of the three to possibly come their way, but there’s little in the way of evidence, beyond the very difficult race, that backs that up at the moment.
Senate Judiciary Committee Chairman Chuck Grassley/Ranking Member Dianne Feinstein:
These two veteran legislators will likely receive less attention than the aforementioned 10, but they (and, perhaps more importantly, their respective staffers) will be crucial in the weeks ahead. Grassley chairs the Judiciary Committee, Feinstein is the top Democrat on the panel. They will help dictate the tone, tenor and tempo of the confirmation hearing and, to some degree, the process itself.