WASHINGTON — As the political lines are drawn in the U.S. Senate ahead of a new Supreme Court nomination fight, all eyes have been on a handful of moderate Republicans who could defect from the party and block any chances of a Senate vote on a nominee before the election.
Senate Majority Leader Mitch McConnell, R-Ky., has said that the Senate will hold a vote on a nominee "this year," but there's no pledge yet to hold that vote prior to Election Day on Nov. 3. The exact timing of the vote may be up in the air, but the internal Senate dynamics for now present a real balancing act for McConnell.
It's not just the familiar names of moderate Republicans and those facing difficult re-election fights whom leadership needs to take into account.
McConnell is now increasingly faced with pressure from a faction of the Senate Republican conference that has grown insistent that the next GOP-appointed nominee be more publicly committed to conservative causes, especially anti-abortion rights.
Even as the balance of the court tilted to the right after the confirmation of Justice Brett Kavanaugh in 2018, some conservatives were deeply disappointed in the latest Supreme Court term after what they say were disappointing decisions on abortion and LGBTQ rights.
That has led to public demands from some Republican senators that the next nominee's positions be clearer.
Sen. Josh Hawley of Missouri has been the most outspoken lawmaker about a Roe v. Wade litmus test for any potential nominee.
“I'm going to start by asking the question that I articulated before the Senate, which is, does this nominee — has this nominee recognized that Roe vs. Wade was wrongly decided in 1973?” Hawley told NBC News earlier this month. His office confirms that he still holds this position.
“If they can't beat the test, it doesn't get further than that, I'm gonna vote no,” Hawley told NBC News at the time. Hawley said on Monday that he spoke with the White House this weekend where he reiterated his position.
Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, among the moderate Republicans most likely to defect, have already said they would not support a vote on any new nominee before the election.
That leaves McConnell with little margin of error if he decides to push for a vote ahead of the election.
Lagoa is a Cuban American from Florida who sits on the 11th U.S. Circuit Court of Appeals, based in Atlanta. One aspect of her record that is troubling to conservatives is an answer she provided to written questions for her confirmation hearing in 2019 when she said that Roe v. Wade “is binding precedent” and that she “would faithfully follow it as I would follow all precedent of the Supreme Court.”
Barrett is more of a known quantity among conservatives. A member of the 7th U.S. Circuit Court of Appeals, based in Chicago, she is thought to be morally opposed to abortion, leaning on her deep Roman Catholic roots. In written questions for her confirmation in 2017, she didn’t say that she would follow precedent. Hawley said on Monday that Barrett “would meet (his) standard.”
Barrett was in top consideration for previous openings, but with a thinner Republican majority in 2018 she would have been more difficult to get through the Senate as Murkowski and Collins were expected to oppose her. Justice Brett Kavanaugh was confirmed to that seat.
Now with a 53-seat majority, McConnell can lose the support of three Republicans and still get a nomination confirmed (with Vice President Mike Pence casting the deciding vote), so conservatives are pushing for a more conservative nominee, saying they can no longer trust what a nominee would do without some verification.
“Where Republicans have gotten this wrong is where we've rolled the dice,” Sen Ted Cruz, R-Texas, said Sunday on ABC’s “This Week."
“You look for a proven record of, has this individual stood up for the Constitution, defended free speech, defended religious liberty, defended the second amendment," Cruz said, "and have they suffered the slings and arrows? Has the press criticized them? Has the press attacked them, and have they stood strong?”
Sen. Mike Braun, R-Ind., said a socially conservative justice is something Republicans owe to their voters. He, like Hawley, was elected in 2018 in large part, they say, on the issue of the Supreme Court. McConnell refused to consider President Barack Obama's nomination after the death of Justice Antonin Scalia in February 2016, making the Supreme Court squarely an issue in the presidential election nine months later.
“I would love if that nominee would say that they're going to look at right to life as an issue, overturning Roe versus Wade, I think is something that any of us believe in the sanctity of life, and that is an important issue and again that's very important in Indiana,” Braun told NBC News.
Mike Davis, founder of the Article III Project, which works to confirm conservative judges to the federal bench, says that any nominee Trump chooses would be far better for conservatives than anyone a President Joe Biden would choose.
“The finalists under consideration have a long track record of a rock solid conservative judicial philosophy, and I have no doubt that Sen. Mitch McConnell and Senate Republicans will confirm President Trump’s Supreme Court nominee this year,” Davis said.
With the confirmation process expected to begin as voters in some states start to mail in ballots, the political battle will be intense. The conservative Judicial Crisis Network launched a $2.2 million ad campaign to pressure vulnerable or wavering Republican senators to support the president’s nominee. The television ads will air in Utah, Maine, Colorado, Iowa and North Carolina.
The liberal group Demand Justice is spending $10 million to pressure vulnerable Republicans to not allow the process to advance. The group says any Trump nominee, but especially one that would explicitly oppose abortion rights, would only further motivate voters this fall.
“An overwhelming majority of Americans support Roe v. Wade, and the fact that Donald Trump wants to replace Ruth Bader Ginsburg with someone who will overturn it and gut access to abortion will certainly mobilize America’s pro-choice majority to fight back,” Christopher Kang, chief counsel at Demand Justice, said.