There’s already some trouble in the Republican paradise of a second, Trump-era Supreme Court vacancy. But the party has options.
President Trump has pledged fidelity to the Federalist Society-vetted list of 25 potential justices, just about all of whom movement conservatives would be comfortable supporting. Marc Short, White House legislative affairs director, signaled that Trump is sticking to the list on Thursday, less than one day after Anthony Kennedy announced his retirement. “He’s already reviewed the list [of potential nominees], and it’s a finite list,” said Short.
Meanwhile, Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, both of whom are much more supportive of abortion than the rest of their party, have suggested Trump look beyond that “finite” list. According to Politico, “Collins said an ‘outside group’ should not be dictating whom the Senate considers; Murkowski said Trump has already kept his commitment to the list by elevating Gorsuch to the Supreme Court and should extend his search beyond that list.”
On Thursday night, Trump hosted Collins and Murkowski, along with three Democratic senators, at the White House to discuss the vacancy.
The president could probably get away with breaking his pledge to stick to the list, but on the condition that he finds a nominee who could have been on the list to begin with. Collins has indicated she’s looking for someone who will say in their confirmation hearing that Roe v. Wade is “settled law.” That is not what other Republicans will want to hear, but it also may not be enough to prevent them from supporting a nominee with an otherwise promising record on abortion and other key questions. The trick is to find someone who meets that very specific criteria and is able to perform well in a hearing.
Back to those three Democratic senators. Though it’s obviously less than ideal, if Republicans are able to keep the three Democrats who voted for Justice Neil Gorsuch on board this time, they can afford to lose Collins and Murkowski. All three of those Democrats— Sens. Joe Donnelly of Indiana, Joe Manchin of West Virginia, and Heidi Heitkamp of North Dakota— are in in the middle of tough re-election battles. A confirmation vote would likely take place in the waning days of their campaign.
If they voted for Gorsuch more than a year before election day, it seems fair to assume they’ll be equally if not more willing to vote for a Trump nominee even closer to election day. He’s popular in their states, and their opponents want to cast them as partisan obstructionists, so the incentives are there.
