Three Democratic senators from red states won by President Trump in 2016 who voted to confirm Neil Gorsuch to the Supreme Court in 2017 are dodging definitive responses on where they stand regarding President Trump’s pending nomination to replace Justice Anthony Kennedy on the Supreme Court.
In contrast, the seven Democratic senators from red states won by Trump who are up for re-election in 2018 and voted against confirming Gorsuch last year have offered comments that suggest they will be difficult to persuade, regardless of whom Trump picks for the job.
Sen. Heidi Heitkamp (D-ND), Sen. Joe Donnelly (D-IN), and Sen. Joe Manchin (D-WV) were the only three Democrats to join the 51 Republican senators who voted to confirm President Trump’s first Supreme Court pick, Neil Gorsuch, in April 2017. Sen. Johnny Isakson (R-GA), who was at home recovering from back surgery, did not vote on the Gorsuch nomination.
“The three lawmakers met separately with Mr. Trump last week at The White House,” the Washington Times reported on Sunday:
Mr. Manchin released a statement saying he will give the nominee a fair shake but didn’t stop to answer questions from reporters late last week.
Mr. Manchin told a West Virginia radio station that he advised Mr. Trump during their meeting to nominate a centrist and cautioned against a nominee who would overturn Roe v. Wade.
“All that stuff is red flags for all Americans,” Mr. Manchin said. “Roe v. Wade has been the law for 40-something years.”
“I wish Justice Kennedy and his family well in his retirement. Part of my job as a United States Senator is to carefully consider the president’s judicial nominees, including for the Supreme Court, and I will thoroughly review the record and qualifications of any nominee presented to the Senate,” Donnelly said in a statement released on Wednesday.
A day earlier, at a rally in Fargo, North Dakota, Trump blasted Heitkamp, who faces Republican nominee Rep. Kevin Cramer (R-ND) in the November general election.
“Heidi will vote ‘no’ to any pick we make for the Supreme Court. She will be told to do so. Democrats want judges who will rewrite the Constitution any way they want to do it and take away your Second Amendment, erase your borders, throw open the jailhouse doors, and destroy your freedoms,” he said .
Emerging from Thursday’s White House meeting, Heitkamp offered no comments to the press.
The other seven Democratic senators from red states won by President Trump in 2016 who are up for re-election in 2018 and voted against the confirmation of Justice Gorsuch have offered comments that suggest it will be difficult to persuade them to vote for anyone Trump nominates to succeed Kennedy.
Sen. Claire McCaskill (D-MO)
“McCaskill was not among the small group of Democratic senators up for election in states won by Trump who met with the president Thursday night at the White House to discuss the Supreme Court vacancy,” the Associated Press reported:
So far, she’s taken a wait-and-see attitude on a nominee for Kennedy’s seat, and in a statement said it’s “premature to discuss his replacement until one has been nominated.” [University of Missouri political scientist Peveril] Squire said McCaskill will likely hold off on making a decision to see what kind of response Trump’s pick will get.
McCaskill also faced pressure when Trump appointed Justice Neil Gorsuch to the court. McCaskill told attendees at a fundraiser last year before his confirmation vote that if Democrats blocked Gorsuch, it could lead to someone disliked even more by the party to be appointed to the court, according to leaked audio provided to the Kansas City Star by the Missouri Republican Party.
McCaskill ultimately voted against Gorsuch, and explained that his past work showed “a rigid ideology that always puts the little guy under the boot of corporations.”
Sen. Debbie Stabenow (D-MI)
“This Supreme Court vacancy represents a very serious and consequential moment for our country,” Stabenow tweeted on Wednesday in a statement about Kennedy’s retirement.
“We have two choices. We can take this opportunity to make progress on health care, women’s reproductive health, voting rights, workers’ rights, marriage equality, environmental protections, and so many more issues that affect our quality of life in America; or we can turn the clock back on these critical issues,” she continued.
Stabenow then offered a unique view not found in the Constitution about the role of the U.S. Senate in the process of selecting a new Supreme Court Justice.
“Given the importance of the decisions before the Supreme Court, the U.S. Senate must come together in a bipartisan way to fill this vacancy with a mainstream Justice. What we do at this moment will have a lasting impact on Michigan families,” she concluded. (emphasis added)
Under the Constitution, of course, the president nominates a candidate for the Supreme Court, and the Senate can either confirm or reject that nominee. The Senate does not, on its own “fill the vacancy.”
You can read Stabenow’s tweet below:
My statement on the retirement of Anthony Kennedy and the Supreme Court vacancy —> pic.twitter.com/x1Iycv50fR
— Sen. Debbie Stabenow (@SenStabenow) June 28, 2018
Sen. Tammy Baldwin (D-WI)
“We saw just this week how the Supreme Court makes decisions that have a profound effect on the daily lives of Wisconsin families. It’s important that Wisconsinites have an independent Justice who will bring people together, side with them over powerful special interests, and protect the constitutional rights and freedoms of all Americans. This is no time for a divisive nominee,” Sen. Tammy Baldwin (D-WI) said in a statement last week.
Sen. Jon Tester (D-MT)
Tester has been silent on the question of a replacement for Kennedy, but on Tuesday, the day before Justice Kennedy announced his retirement, Tester issued a statement about the Court’s 5-4 Janus decision, in which Kennedy sided with the majority:
“This bad decision is a punch in the gut to Montana working families,” Tester said in the statement.
“It paves the way for Montanans to work more and make less money, it invites the deterioration of workplace protections, and it rolls back much of what Montanans have been fighting for over the past 100 years. I will relentlessly defend Montana workers against this threat to our livelihoods and to our way of life,” he added.
Sen. Bill Nelson (D-FL)
“Justice Kennedy was a balanced, consensus candidate nominated by President Reagan. I expect President Trump to do the same with his nomination,” Florida’s Nelson said, Tampabay.com reported.
“I believe the American people should be given the opportunity to express their view in the upcoming election, and then have the Senate exercise its constitutional duties,” Nelson added.
Sen. Sherrod Brown (D-OH)
“I’m already very troubled by the actions of the Supreme Court in just the last few weeks – taking away workers’ rights, voters’ rights and women’s rights,” Brown said in a statement released on Wednesday.
“I hope the President will take this opportunity to bring Americans together by appointing someone with a well-respected record that all sides can support,” he added.
Sen. Bob Casey (D-PA)
“Majority Leader McConnell once said that “the American people should have a voice in the selection of their next Supreme Court justice,” so he should ensure that’s the case and follow his own rule. The Senate should only consider this nomination when a new Senate is seated in January,” Casey said in a statement released on Wednesday.
“Thus far, the Trump Administration has nominated many far-right judges that put the interests of big corporations ahead of justice and fairness for all Americans. If an individual from the list provided to candidate Donald Trump by far-right organizations like the Heritage Foundation and the Federalist Society is nominated, then I am highly unlikely to support that nominee. Justices who sit on the most important court in the world, should not be selected by corporate interests and extreme right organizations,” he continued.
“Over and over again, the current Supreme Court majority has only represented the interests of extreme right-wing ideologues and big corporations. In this term, the Supreme Court has issued rulings that would decimate labor unions, deny many Americans their right to vote and allow partisan gerrymandering to continue. This nation deserves a Supreme Court Justice who will be guided by the principle of equal justice under the law for all Americans,” Casey concluded.
With a narrow 51 to 49 majority in the Senate now, and with Sen. John McCain (R-AZ) gravely ill, Republicans can at present barely count on reaching the 50 votes needed to confirm Trump’s pick for the Supreme Court.
Sen. Susan Collins (R-ME) on Sunday signaled that she could be a “no” vote should the president nominate a candidate who would overturn the 1973 Roe v. Wade Supreme Court decision.
“A candidate who would overturn Roe would not be acceptable,” she said on ABC’s This Week, as Breitbart News reported.
Should Collins defect and Sen. McCain remain incapacitated, the president will need at least one red state Democratic senator to step up in order to confirm his nominee.
So far, none of the three likely candidates for that role–Heitkamp, Donnelly, or Manchin–are giving indications either way.
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