Republican Party Divided Over Trump Shows Unity on Supreme Court

  • Court gives McCain, Toomey, Heck pitch to appeal to Trump fans
  • Democrats may have to deploy ‘nuclear option’ to confirm picks

Guards stand in front of the Supreme Court on Sept. 7, 2016, in Washington.

Photographer: Mark Wilson/Getty Images

Republican Senate candidates trying to escape Donald Trump want voters to think about the U.S. Supreme Court.

Representative Joe Heck of Nevada, who is campaigning for Minority Leader Harry Reid’s Senate seat, says one of the most important reasons to elect him is so he can vet the next president’s Supreme Court picks. Pennsylvania Senator Pat Toomey has said he would support Trump’s picks for the high court, even though he has yet to back the nominee.

But with Trump’s poll numbers in free fall, Arizona Senator John McCain took it to a whole new level Monday when he said in a Philadelphia radio interview that neither he nor Toomey would confirm any of Hillary Clinton’s Supreme Court picks. A spokesman walked back the statement later, but the comments raised the specter of an unprecedented five-year vacancy on the Supreme Court for purely partisan reasons.

McCain’s remarks also cast doubt on the often-repeated Republican justifications for their blockade of President Barack Obama’s nominee Merrick Garland, which they said they mounted to give voters a chance to weigh in via the presidential election. 

For Democrats, the remarks were a warning sign that if they win the Senate and the presidency, they might have to decide very early on whether to take the explosive step of changing Senate rules for confirming high court justices.

Life Raft

Democratic leaders had long touted the blockade as a key issue that would help them win back the chamber, but the Supreme Court now looks like a possible life raft for Republicans navigating a civil war within their party over Trump.

Republicans like McCain, Toomey and Heck are trying to figure out how to persuade Trump supporters to vote for them. Toomey has yet to endorse Trump, calling him a deeply flawed candidate, and McCain and Heck declared they wouldn’t vote for Trump after the 2005 tape aired of him bragging about groping women.

Toomey, who has praised Trump’s list of 21 possible Supreme Court picks, defended the blockade in a debate with Democrat Katie McGinty on Monday. He said he was worried about upsetting the "balance" of the court after the death of conservative Justice Antonin Scalia.

"The Constitution is very clear that the power to seek a justice is a shared power between the president and the Senate," Toomey said. "The American people will have a say," he said, by "who they elect as president of the United States."

Wooing Trump Voters

In Nevada, Heck, who faces a tough race, specifically cited the court as a way to keep Trump voters on his side.

"Regardless of who the occupant of the White House is, if we don’t have a Republican Senate, specifically messaging to those individuals, then nothing that they want done is going to get done," he told reporters Saturday, referring to unhappy Trump voters.

"You’re going to need a Republican Senate, especially on the Supreme Court," Heck added. "When you start talking about Supreme Court nominations, to those individuals, you are going to want a Republican Senate conducting those confirmation hearings."

It’s a tricky calculus for these Republicans who are hoping to keep Trump loyalists on their side and reach out to moderates they need to win.

Heck and Toomey have each tried to hew a moderate line while keeping their appeal to conservatives. In his Monday debate, Toomey said he would have supported Obama’s nomination of Justice Sonia Sotomayor, but not of Elena Kagan.

Toomey’s campaign also disavowed McCain’s remarks about blocking Clinton’s picks.

“Senator Toomey has a long record of bipartisanship on judicial nominees. Regardless of who the president is, Senator Toomey will support judges who are well qualified and respect the Constitution, as he has always done," said Ted Kwong, a spokesman for Toomey.

And in his debate with Democrat Catherine Cortez Masto last week in Las Vegas, Heck declared he had no one "litmus test" for a justice.

Other Republicans have rejected the idea of a four-year blockade of Clinton picks.

"If that new president happens to be Hillary, we can’t just simply stonewall," said Judiciary Chairman Charles Grassley in a conference call Tuesday with reporters posted by Radio Iowa. Grassley has backed Trump and leads in his re-election fight against Democrat Patty Judge in Iowa.

‘Nuclear’ Stakes

The partisanship over the court may increase the odds Democrats would use the so-called nuclear option of changing Senate rules to prohibit a minority from filibustering Supreme Court nominees, if they win control of the chamber and Clinton defeats Trump.

Senator Chuck Schumer of New York, Reid’s presumptive heir as Democratic leader, demurred when asked in a press conference last month about eliminating the 60-vote threshold for considering court picks, saying he would make a decision next year.

He’ll face his own quandary as he ponders that question: Unlike this year, far more Democratic seats will be up for election in the 2018 midterms, including in predominantly Republican states. 

Senate Democrats like Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and others could face political retribution if they help advance nominees who could then vote to uphold Clinton’s regulatory plans, such as a crackdown on coal-fired power plant emissions.

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