Of course, it’s far too early to tell whether Biden’s pick could see a confirmation vote closer to Justice Neil Gorsuch’s (he won over Manchin, Donnelly and Heitkamp in 2017) or that of Justice Amy Coney Barrett, the first high court justice in more than 150 years not to receive a single vote from a member of the minority party. Either way, the numbers indicate that whomever Biden picks to fill the shoes of retiring Justice Stephen Breyer likely won’t see substantial bipartisan support.
Conservative hard-liner Sen. Josh Hawley (R-Mo.), who hasn’t supported any of Biden’s judicial picks, said in an interview that he’s not making a judgment call yet on the unnamed nominee. But he added that if Biden “goes down the path he has been going” on judicial nominees, he’ll have trouble getting Republican votes.
“It deserves thorough scrutiny, and I hope that whoever it is Republicans will be committed to doing that — and it won’t just be a rubber stamp process,” Hawley said.
Senate Republicans are keeping their powder dry on the coming confirmation battle, noting that it’s too early to weigh in without a nominee. Senate Minority Leader Mitch McConnell warned Biden last week not to “outsource” the decision to the “radical left.”
Yet Democrats acknowledge that Collins, Murkowski and Graham are their most likely candidates for GOP support of the high court nominee, even as they caution against making any predictions. So far this Congress, Collins has backed 86 percent of Biden’s judicial nominees, Murkowski has backed 79 percent of them and Graham voted for 62 percent of them.
The higher rate at which Collins, Murkowski and Graham backed Biden’s initial judicial slate could give Democrats some hope of avoiding the first 50-50 Supreme Court confirmation vote in history. And any GOP support could provide a potential cushion, in the event of a Democratic absence.
Nan Aron, founder of the liberal advocacy group Alliance for Justice, estimated the odds that those three Republicans support Biden’s pick at “more likely than not, but not a guarantee.”
“Graham has taken the position that the Senate should defer to the president,” Aron said. But, she added, “things could certainly change.”
The days of Supreme Court confirmations by large bipartisan margins appear over for the moment, in part due to a 2017 GOP rules change that allowed justices to be confirmed by a simple majority. (Republicans view that as a response to a 2013 rules change from Sen. Harry Reid (D-Nev.) that nixed the filibuster for district and circuit court judges.)
But just as senators’ records on confirming presidential nominees can prove a valuable metric for how they’ll address the Supreme Court, vote counts in the Judiciary Committee provide their own vantage point on the level of Republican cooperation with Biden judges — even if they don’t necessarily translate to “yes” votes on the floor.
Graham, a member of the committee, has voted to move forward on 48 Biden judges, by far the highest rate of approval. Graham is followed by Sen. Thom Tillis (R-N.C.), who has agreed to move forward on 25 judges, and top Judiciary Committee Republican Chuck Grassley (Iowa), who supported advancing 20. By contrast, Hawley, along with Sens. Ben Sasse (R-Neb.) and Ted Cruz (R-Texas), has supported none.
“Some of the people that are being considered have already been considered by the Judiciary Committee and did receive some Republican votes,” said former Sen. Russ Feingold (D-Wis.), now president of American Constitution Society, a liberal legal group. “I think it could be a less contentious situation than some people expect.”
When Biden’s judicial picks get to the floor, the fourth most common GOP vote for them so far has been Grassley. Grassley has supported 36 percent of the president’s choices for district and circuit court judgeships.
A vote for circuit or district court judge, of course, doesn’t guarantee a vote for a Supreme Court nominee. Manchin and Sen. Tim Kaine (D-Va.) supported Barrett’s nomination to become a circuit court judge but voted against her Supreme Court nomination.
Nevertheless, the fact that Murkowski, Collins and Graham were the only three Republicans to vote yes on the floor for the circuit nomination of Judge Ketanji Brown Jackson is prompting speculation about whether they’d support her for the high court; Jackson remains a frontrunner for Biden’s nod.
Murkowski last week cautioned against drawing any conclusions about her Jackson vote when it comes to the Supreme Court.
“There is a pretty tangible difference between being on a district court, a circuit court and then this Supreme Court,” Murkowski said, according to KDLL. “These are lifetime appointments. My role in the advice and consent is one that I take very, very seriously.”
Murkowski and Collins both said that the Senate shouldn’t rush the process. Collins indicated that she wouldn’t make a decision until hearings are held, giving her a chance to meet with and research the nominee.
Graham said upon Breyer’s retirement that “elections have consequences,” alluding to Democrats’ lack of need for GOP votes to confirm the pick. Democratic centrists Manchin and Sen. Kyrsten Sinema (D-Ariz.) have so far supported every Biden judicial nominee.
On Sunday, Graham said he understood Biden’s rationale for wanting to add a Black woman to the Supreme Court and touted a District Court judge from his home state, J. Michelle Childs. “Let’s make the court more like America,” he said on CBS’ “Face the Nation.” “But qualifications have to be the biggest consideration, and as to Michelle Childs, I think she’s qualified by every measure.”
Collins has voted for six of the nine current Supreme Court justices, while Graham has voted for seven of them. Both backed former President Barack Obama’s nominees, Justices Sonia Sotomayor and Elena Kagan, while Murkowski voted against both.
Notably, Collins voted against Barrett, citing the proximity to the 2020 election, and Murkowski didn’t support Kavanaugh amid accusations of sexual misconduct against him from Christine Blasey Ford.