GOP appears to have the votes to act as Trump weighs Supreme Court pick
President Trump said Monday he is likely to name a replacement for Supreme Court Justice Ruth Bader Ginsburg on Saturday, as Senate Republicans continued to discuss whether to push for a vote before the election, despite furious Democratic opposition.
As more senators declared their positions, Republicans appeared increasingly likely to have the votes to confirm Trump’s choice — assuming no surprises emerge in the confirmation process — although the timing of a vote remained uncertain.
Trump said five women were being vetted for the nomination to replace Ginsburg, who died Friday, “but I have one or two that I have in mind.”
According to Republicans familiar with the selection process, two conservative federal Appeals Court judges, Amy Coney Barrett and Barbara Lagoa, are the only candidates in real contention.
Administration officials for the last two years have viewed Barrett, a former Notre Dame law professor and conservative favorite, as the front-runner for the next Supreme Court vacancy. She was the runner-up for the court nomination that ultimately went to Brett M. Kavanaugh in 2018.
Over the weekend, however, Lagoa emerged as a strong possibility. The daughter of Cuban exiles, her selection might help Trump politically in Florida, a state vital to the president’s reelection chances.
Trump appears intrigued by that possibility. He told reporters Monday that he “may” speak with Lagoa when he visits Miami on Friday.
“She’s highly thought of. She’s got a lot of support. I’m getting a lot of phone calls from a lot of people. She has a lot of support. I don’t know her, but I hear she’s outstanding,” he said.
Lagoa, however, has a much shorter track record than Barrett, who has written extensively on high-profile legal issues as a law professor.
Some conservatives are uncertain if Lagoa would be firmly on their side on the high court. Ironically, the fact that she won 80 votes in her Senate confirmation to the 11th Circuit last year now has some conservatives suspicious that she may be too moderate.
Sen. Josh Hawley (R-Mo.), who recently said he would vote only for nominees who explicitly say that the court’s 1973 Roe vs. Wade decision establishing abortion rights was wrong, said Barrett passed his test.
“Amy Barrett, I think, clearly meets that threshold,” he told reporters.
He did not explicitly comment on Lagoa.
As Trump weighs his choices, Republicans in the Senate continue to ponder the timetable.
Their interest in further entrenching a conservative majority on the Supreme Court could clash with their hope of preserving Republican control of the Senate and White House.
Delaying a vote until after the election could galvanize GOP voters and provide breathing room to some Republican Senate incumbents, for whom a court vote could be politically perilous. Republicans worry particularly about Sen. Susan Collins of Maine, an embattled incumbent whose vote for Kavanaugh has been a key factor in putting her behind her challenger, Sara Gideon, the speaker of the state House of Representatives.
Collins has publicly said she would oppose a nominee before the election.
Holding off until after the election could also provide a buffer for other Republican incumbents who are on the ballot and would face criticism for rushing through a nominee.
But conservative activists fear that if Republicans lose the White House or the Senate, Republican senators might not be willing to confirm Trump’s nominee. With Republicans holding a 53-47 majority in the Senate, they can currently afford three defections, but after the election, that margin could tighten. No Democratic senators are expected to back Trump’s nominee before the election or in a lame-duck session if Trump loses.
If the presidential race or key Senate contests do not have clear winners for days or weeks after election day, Nov. 3, holding a vote could be even more difficult.
Conservatives are pressing hard for a quick vote.
“No one should trust that faux Republicans in the Senate will keep their word after Nov. 3,” warned Rep. Mark Walker (R-N.C.). “The Supreme Court opening should be filled before the election.”
Democrats remained hopeful that at least two more Republicans would join Collins and Lisa Murkowski (R-Alaska) in opposition to voting on a new justice so close to election day.
“There is only one way for us to have some hope of coming together again, trusting each other again, lowering the temperature, moving forward — and that is for four brave Senate Republicans to commit to rejecting any nominee until the next president is installed,” said Senate Minority Leader Charles E. Schumer (D-N.Y.). “That was Justice Ginsburg’s dying wish, and it may be the Senate’s only hope.”
But the list of other potential Republicans who might break ranks has been whittled down to perhaps just one: Sen. Mitt Romney of Utah.
Romney — the only Republican to vote to convict the president in his impeachment trial and one of the few willing to defy Trump — is viewed as an unknown. He declined to answer reporters’ questions Monday about his plans.
Sen. Cory Gardner of Colorado, one of the last potential swing votes to voice an opinion, said Monday evening that he would consider a nominee. “Should a qualified nominee ... be put forward, I will vote to confirm,” he said.
Sen. Charles E. Grassley (R-Iowa) — who led the Senate Judiciary Committee in 2016 when it blocked the consideration of President Obama’s nominee, Merrick Garland — has previously said he wouldn’t support considering a nominee in an election year. But he said he would support the consideration this year. He said the divided government that existed in 2016 — when the Senate and White House were controlled by different parties — does not exist this year, eliminating his reservations.
Senate Republicans plan to huddle behind closed doors Tuesday to discuss the pending appointment and strategy.
Senate Majority Leader Mitch McConnell (R-Ky.) pushed back on Democrats’ claims that he was rushing the process. “The Senate has more than sufficient time to process the nomination,” he said Monday. “There are 43 days until Nov. 3 and 104 days until the end of this Congress.”
In a preview of what’s expected to be a fiercely partisan battle, Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.), who leads the panel responsible for confirming nominees, struck a personal tone. He told Democrats on the committee that he would “proceed expeditiously” and that he was “certain if the shoe were on the other foot, you would do the same.”
Republican senators — and voters — have placed an extremely high value on building a conservative court majority. For that reason, Republicans are increasingly confident that if Trump’s selection survives a vetting and a predictably contentious hearing, the nominee would be confirmed.
“I cannot imagine a scenario where even the most stubborn Trump critics in the Senate on the right would vote against a conservative nominee for the Supreme Court if their qualifications and hearing check out,” said Rory Cooper, a Republican strategist and managing director at Purple Strategies, a political consultancy in Washington. “Whether you support Trump or don’t support him, once he makes the nomination, it really has nothing to do with him.”
Republicans speculated that candidates who have recently gone through a confirmation process for a lower court position — such as Barrett or Lagoa — would move more quickly because they were vetted, albeit to a lower threshold, for their current positions.
“If it’s somebody who’s just been confirmed with a circuit court ... I think it could be done more expeditiously but remains to be seen,” said Sen. John Cornyn (R-Texas).
Some Republicans argue that they are in a no-win situation, pointing to progressive Democratic warnings about packing the courts if they win the election.
“If the Democrats are in charge, they will pack the courts and the Senate,” said Sen. Kevin Cramer (R-N.D.). “The Republic and its institutions are now at stake, and I did not run for the Senate and put my family through a grueling campaign just to shrink from a moment like this.”
Times staff writer Janet Hook contributed to this report.
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