by Christine Niles, M.St. (Oxon.), J.D.  •  •  June 28, 2018

The short answer: No[? – AQ Tom] Defection by pro-abortion Republican senators is a real possibility. But Democrat defectors could save Trump’s nominee, particularly those running in close races in red states. [For more see comment below. – AQ Tom]

WASHINGTON ( – With Supreme Court Justice Anthony Kennedy’s momentous announcement Wednesday that he’d be retiring, the focus now turns to the fight over the new Court vacancy.

Democrats won’t have the leverage they’ve had in the past, as Republicans exercised the “nuclear option” in last year’s battle to seat Justice Neil Gorsuch. After heated confirmation hearings, Democrats filibustered the vote, and Republicans made good on their promise to change Senate rules, voting to ensure cloture (the vote to end the filibuster) no longer requires a supermajority.

2017 “Nuclear Option” Votes (Courtesy of the New York Times)

“This will be the first and last partisan filibuster of a Supreme Court nomination,” Senate Majority Leader Mitch McConnell vowed at the time.

The change in Supreme Court rules will guarantee that Democrats can’t block Trump’s nominee to replace Kennedy via filibuster. But the nominee is not a shoo-in; with a handful of unreliable Republicans in the Senate, Trump’s candidate — whoever it might be — is not guaranteed enough votes for confirmation.

Senators to Watch

Senator John McCain (AZ) has been absent all year owing to health reasons, and there is a good possibility he may sit out the confirmation vote, making the balance effectively 50 Republicans to 49 Democrats.

And defection by pro-abortion Republican Senators Susan Collins (ME) and Lisa Murkowski (AK) is a real possibility, especially if Trump come through on his promise to nominate a solidly pro-life judge.

Senator Jeff Flake (AZ) has been no fan of Trump and has even threatened to block any judicial nominees, while Sen. Dean Heller (NV) is facing a difficult midterm race in a state that overwhelmingly went for Hillary Clinton, and will feel pressure to vote against Trump’s pick.

But Democrat defectors could save Trump’s nominee, particularly those running in close races in red states: Sen. Joe Donnelly (IN), Sen. Joe Manchin (WV) and Sen. Heidi Heitkamp (ND). All three cast their votes for Gorsuch last year.

The stakes then, of course, were not as high; everyone understood that Gorsuch would simply be restoring the balance of power on the High Court, with four reliably liberal justices vs. four reliably conservative justices, and Kennedy the unpredictable swing vote.

But the new vacancy opens up the possibility of a fifth conservative vote that could lead to conservatives’ long-desired goal of overturning Roe v. Wade, and liberals are already dreading the possibility. “Anthony Kennedy is retiring. Abortion will be illegal in twenty states in 18 months,” tweeted Jeffrey Toobin, legal analyst for CNN.

Questions also loom about the permanence of Obergefell v. Hodges (2015), authored by Kennedy, which legalized same-sex “marriage” throughout the country. A fifth conservative vote could undo the legacy of Kennedy on this score, a long-time gay rights activist from the bench.

Hoist by Their Own Petard

On the Supreme Court nuclear option, the Democrats were in fact defeated by a plan they had engineered. In 2013, in a Democrat-led Senate, Majority Leader Sen. Harry Reid called to change longstanding precedent by eliminating the requirement of a supermajority to end the filibuster of lower court nominees. The measure was at the time considered so extreme that it was referred to as the “nuclear option” — and after it was passed in the Senate, Reid held a victory party with fellow liberals.

Republicans at the time called it a raw exercise of political power, and vowed Democrats would rue this day.

“I say to my friends on the other side of the aisle, you’ll regret this,” McConnell warned at the time. “And you may regret it a lot sooner than you think.”

“Democrats won’t be in power in perpetuity,” said Sen. Richard Shelby (AL). “This is a mistake — a big one for the long run.”

The Democrats’ reason for changing the Senate rules was to advance three of President Obama’s picks to the D.C. Circuit Court of Appeals — considered the most prestigious and significant federal court after the Supreme Court. But the precedent set by Democrats in 2013 led to the Republicans extending the same nuclear option to Supreme Court nominees in 2017, all but ensuring that Republicans will be able to start stacking the Court in their favor, with an impact on the judicial and moral landscape that may be felt for decades.

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  1. Pro-abortion GOP senators hint they may oppose Trump’s Supreme Court nominee

    Calvin Freiburger

    WASHINGTON, D.C., June 28, 2018 (LifeSiteNews) — As pro-lifers enthusiastically anticipate President Donald Trump’s impending appointment of a new Supreme Court justice, questions have emerged about the Senate’s two pro-abortion Republicans backing a pro-life jurist.

    Justice Anthony Kennedy announced his retirement Wednesday, setting the political world ablaze with excitement from conservatives and fearful outrage from liberals. President Donald Trump announced that he would “immediately” begin the search for a successor, and Senate Majority Leader Mitch McConnell promised that the Senate would vote on his choice this fall, presumably ahead of November’s already-contentious midterm elections.

    The intensity of both sides’ reactions stems from speculation that Trump’s nominee could give the Supreme Court its first clear pro-life majority, leading to the long-awaited overturning of Roe v. Wade. But the Senate’s most liberal Republicans have already signaled that their “yes” vote is not guaranteed.

    “I view Roe v. Wade as being settled law. It’s clearly precedent and I always look for judges who respect precedent,” Sen. Susan Collins of Maine told reporters. As to whether the nominee’s abortion position would be a potential deal-breaker, she said “that obviously would be my preference, but what I’m most looking for is a Justice that will follow the law and the Constitution.”

    Sen. Lisa Murkowski of Alaska, who also supports abortion, issued a statement hailing Kennedy for “h[olding] the court together and d[oing] right by the Constitution,” suggesting that she would like his replacement to rule similarly. “It is my longstanding practice to carefully scrutinize the qualifications of judicial nominees and to cast an independent vote.”

    With Sen. John McCain’s absence from the Senate giving Republicans a razor-thin margin of 50-49, Democrats are placing their hopes in Collins and Murkowski, NBC News reports. Vice President Mike Pence could still break the tie with just one defection, but two would be enough to torpedo the nomination.

    McCain has been absent from the Senate all year while undergoing brain cancer treatment, but has so far kept his seat, preventing Arizona Republican Gov. Doug Ducey from appointing a replacement to vote in his place until the 2020 election. Alabama Democrat Doug Jones’ special election victory in December also narrowed the GOP majority that confirmed Gorsuch.

    So far, Collins and Murkowski have voted for Trump’s judicial nominees, including Justice Neil Gorsuch, despite their pro-abortion stance. But while pro-lifers hope that trend will continue, the variables at stake leave it an open question.

    Despite espousing a generally-conservative legal philosophy, Gorsuch did not have a record of previous rulings on abortion cases, and he testified during his confirmation hearings that Roe’s status as precedent would have to be considered in evaluating whether to overturn it.

    Moreover, Gorsuch was replacing the pro-life Justice Antonin Scalia, meaning another anti-Roe vote would have merely preserved the court’s ideological status quo. But the next nominee is likely to shift the balance of power, which may change their incentives.

    Others have expressed concern that Republican Sen. Jeff Flake of Arizona might derail the nomination, because he has previously threatened to block all of Trump’s lower nominees until the Senate votes on the administration’s trade policy. However, Flake confirmed Wednesday he will not extend that protest to a Supreme Court pick.

    On the other side of the aisle, Andrew Prokop at the left-wing Vox notes that Democrat Sens. Joe Manchin, Joe Donnelly, and Heidi Heitkamp all crossed party lines to confirm Gorsuch, and all three face re-election this fall in deep red states. At the same time, the nomination’s greater stakes will intensify pressure on them to vote in accordance with their party.

  2. The political intensity of this run-up to a new nominee will,only be exceeded by the all-out warfare to follow once that name appears.

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