President Trump has announced he’ll nominate Brett Kavanaugh to replace the Supreme Court’s swing justice, Anthony Kennedy — setting up an enormously consequential confirmation battle over his replacement in the narrowly divided Senate for later this year.
Senate Majority Leader Mitch McConnell has already announced that he’ll hold a confirmation vote for Kavanaugh before this fall’s midterm elections. And after McConnell’s rules change last year, only a simple majority is necessary to get a Supreme Court justice through the Senate.
Still, while Republicans do currently control a majority in the chamber, it’s quite a narrow one. They have 51 seats, meaning they could theoretically confirm a new justice without any Democratic help. But Sen. John McCain (R-AZ) has been absent from Washington all year for health reasons. If McCain remains in his seat but unable to show up and vote, the Senate will effectively be composed of 50 Republicans and 49 Democrats — so, if any one Republican defects in a partisan vote, he or she can sink a nomination.
And with abortion-rights precedents that have existed for decades suddenly at stake, all eyes will be on two swing blocs: moderate Republicans and red-state Democrats.
Susan Collins and Lisa Murkowski matter most for Brett Kavanaugh’s confirmation chances
By far the two most important senators to watch, overall, for Kavanaugh’s confirmation chances are Susan Collins of Maine, and Lisa Murkowski of Alaska. Both are pro-abortion rights. Both have also proven willing to buck their party — for instance, they sank Obamacare repeal last year.
Both also, however, voted in favor of confirming Neil Gorsuch. But the stakes were lower for that vote. Since he was filling Antonin Scalia’s seat, his confirmation meant only that the Supreme Court’s ideological makeup would be restored to approximately where it was in February 2016, before Scalia’s death. It was widely understood that, with Gorsuch, the court would still be short of the votes to overturn or badly weaken Roe v. Wade — because Kennedy, though a conservative, had sided with the liberal and moderate justices to uphold it.
Yet the replacement of Kennedy with a staunch conservative like Kavanaugh would mean the overturning of Roe is a strong possibility. This would mean a serious test for Collins and Murkowski — one they have not yet faced. Both seem to sincerely care about women’s reproductive rights. Collins in particular may be concerned about her own reelection in a purple state in 2020.
If Democrats unite against Trump’s nominee, and McCain remains in his seat but is unable to come to Washington and vote, then Kavanaugh will have to win both Collins and Murkowski’s votes. He can’t afford to lose either one of them.
As it happens, neither Collins nor Murkowski chose to attend Trump’s announcement tonight. And don’t expect them to announce their decisions anytime soon — historically, both have often tended to hold off announcing their decisions on controversial votes until close to the very end.
The other Republicans: Rand Paul, Dean Heller, Cory Gardner, Shelley Moore Capito, and John McCain (for his health)
Though Collins and Murkowski will likely be the decisive votes here, there are a few other Republicans who are worth watching — though at this point, all appear highly likely to vote yes.
- Sen. Dean Heller of Nevada is facing a tough reelection in an increasingly blue state this fall and could feel the heat. However, he’s backed the Trump agenda so far and seems unlikely to defect on an issue of such importance to the conservative base. Indeed, back in March, Heller was recorded privately expressing his hope that Kennedy’s retirement would “get our base a little motivated” and help him in his general election contest against Rep. Jacky Rosen (D).
- Sen. Cory Gardner of Colorado also represents a state that’s lately leaned toward Democrats, so he might have his reelection in mind too. He’s not up until 2020 — but if he votes for Kavanaugh, and Kavanaugh goes on to be the swing vote in some controversial decisions, Gardner would have to explain his vote on the campaign trail. Still, he’s also a party guy (he chairs the NRSC, Republicans’ campaign committee arm) and probably won’t defect.
- Sen. Rand Paul of Kentucky, the idiosyncratic libertarian who sometimes causes trouble for GOP leaders, may be hostile to a Kavanaugh nomination, according to reports. The Associated Press recently reported that Paul believes Kavanaugh is too obliging toward the power of the executive branch and has even privately said he’d vote no on his nomination. (He’ll face enormous pressure to vote yes, and has often caved in similar situations.)
- Sen. Shelley Moore Capito of West Virginia has called herself pro-choice, though she tends to vote with the pro-life movement. She said recently that Roe v. Wade has been “a precedent for a long time” and that she expects it to be upheld — however, she also says that Neil Gorsuch was a great pick and would support a nominee similar to him, which at first glance Kavanaugh appears to be.
Finally, another potentially very important question is what happens with Sen. John McCain’s seat. As mentioned, since he hasn’t been able to travel to Washington all year, it currently seems that he’ll be unable to vote on the nomination.
However, if McCain were to lose his battle with cancer, or if he were to simply decide to step down for health reasons, Arizona’s Republican governor would appoint his replacement — meaning Republicans would have an extra senator. Then, McConnell could still get Kavanaugh past unified Democratic opposition even if he lost one GOP vote.
The key Democrats to watch: Joe Manchin, Joe Donnelly, Heidi Heitkamp
Finally, Kavanaugh’s confirmation battle will put an enormous amount of pressure on red state Democrats too. It’s likely no accident that McConnell wants to hold a vote in the fall, close to the midterms — he wants to put as much pressure on vulnerable Trump Country Democrats as possible.
The main Democrats to keep an eye on are Sen. Joe Manchin (D-WV), Sen. Joe Donnelly (D-IN), and Sen. Heidi Heitkamp (D-ND). All three face difficult reelections this fall in states President Trump won overwhelmingly. All three also voted for Gorsuch last year — though it should be noted that Gorsuch’s confirmation was assured anyway, due to unified Republican support, so the stakes were lower.
As for Sen. Claire McCaskill (D-MO) and Sen. Jon Tester (D-MT), who represent similarly deep-red states, they voted against Gorsuch last year and have generally been more likely to vote against the Trump agenda than the senators detailed above. Sen. Doug Jones (D-AL), in another very red state, will also face scrutiny in the first Supreme Court vote he’ll cast since being elected last year — though unlike the other Democrats mentioned here, he’s not up for reelection until 2020.
Overall, betting on partisanship is generally a good call for today’s polarized Senate. But this is an unusually momentous vote, with consequences that could last for a generation. Individual senators have enormous leverage here — and enormous responsibility, too.