Arithmetic and self-preservation will determine the next justice on the Supreme Court.
Whoever becomes the nominee will need a simple majority in the Senate to become Justice Anthony Kennedy’s successor. Because of John McCain’s poor health, and the warnings about Roe v. Wade from Sens. Lisa Murkowski of Alaska and Susan Collins of Maine, Majority Leader Mitch McConnell can’t count on reaching 50 with Republicans alone.
To put another conservative on the court, McConnell will need a Democrat or two. His task is to find the vulnerable Trump-state Democrats who care more about their career than about preventing a conservative majority on the high court. Here are the six potentials on the White House list whose pick could pick off a home-state Democrat.
Amy Coney Barrett of Indiana
Sen. Joe Donnelly, D-Ind., is a shrewd politician who knows how to keep his seat. In Indiana, that means occasionally bucking the party line. He did this twice already voting to confirm Justice Neil Gorsuch and to confirm Notre Dame law professor Barrett to the U.S. Court of Appeals for the Seventh Circuit.
A vote for Barrett would solidify Donnelly’s reputation as a bipartisan as he prepares for an all-out brawl with Republican Mike Braun. That could explain why Donnelly recently paid the White House a visit. He seems the most likely to flip.
Raymond Gruender of Missouri
Sen. Claire McCaskill, D-Mo., has remained silent about her Supreme Court intentions. She is presumably facing a tough re-election against state attorney general Josh Hawley. A vote for St. Louis native Raymond Gruender could ease some of that pressure.
It’s certainly possible. When Gruender’s nomination to the U.S. Court of Appeals for the Eighth Circuit came up for a vote in 2004, the Senate voted to confirm 97-1. It seems unlikely, though. While McCaskill wasn’t around to vote on Gruender, she was around to vote on Gorsuch. She didn’t just vote against his nomination, she fundraised off of it.
Thomas Hardiman of Pennsylvania
Sen. Bob Casey, D-Pa., doesn’t face a tough re-election from Republican Rep. Lou Barletta so much as he faces an uncomfortable existential question. Casey has campaigned for years as a “pro-life Democrat.”
He voted against Gorsuch last time around because that justice focused more on the original meaning of the Constitution than reinterpreting the law to the needs of citizens. He can’t do that as easily with Hardiman for two reasons.
First, Hardiman would represent the fifth vote against Roe v. Wade. If Casey is actually pro-life, it’s time to put up or shut up forever. Second, Casey voted for Hardiman to join the U.S. Court of Appeals for the Third Circuit. Everyone did in 2007. Hardiman was confirmed 95-0.
Diane Sykes of Wisconsin
Sen. Tammy Baldwin, D-Wis., will face a tough Republican challenger in either state Sen. Leah Vukmir or businessman Kevin Nicholson. It’s hard to see how a vote for Sykes helps her.
Baldwin didn’t vote on Sykes’ nomination to the U.S. Court of Appeals for the Seventh Circuit. Even if she was in the Senate in 2004, the senator probably would have joined the likes of then Sen. Hillary Clinton, D-N.Y., in voting no. She already voted against Gorsuch and she would lose her base by voting for Sykes.
Charles Canady and Federico Moreno of Florida
Sen. Bill Nelson, D-Fla., faces double trouble in the panhandle. Trump added two Florida judges to his list, Federico Moreno of the U.S. District Court for the Southern District of Florida and Charles Canady of the Supreme Court of Florida. If Trump nominates either, Nelson will have a hard time explaining his no vote.
But Nelson has already dug in. Shortly after Kennedy announced his resignation, the senator released a statement calling on the White House to wait until after the election to make a nomination. It’s unlikely he backtracks as polls show checking the administration helps his re-election.
