WASHINGTON — Senate Republicans are torn about how to approach the impending Supreme Court vacancy under President Joe Biden, with some launching attacks out of the gate even as others voice openness to supporting his yet-to-be-named nominee.
Numerous Republicans have criticized Biden’s campaign promise to pick a Black woman for the role, which he recently vowed to fulfill.
“I don’t understand why he put himself in a box by saying he’d only nominate an African American woman,” said Sen. John Cornyn, R-Texas, a member of the Judiciary Committee. “Maybe he made his bed and he’s going to have to lie in it.”
“It sends a bad message to other people that they can’t compete for a nomination — like an Asian or somebody else of a different race,” he said. “And it also diminishes the eventual nominee, because people will always suspect that they didn’t get the nomination because of merit.”
Biden hasn’t made a selection yet, and Cornyn didn’t say how he would vote. But he noted that replacing the retiring Justice Stephen Breyer with another liberal wouldn’t disrupt the court’s 6-3 conservative majority.
“One reason I don’t think the Breyer replacement will be as controversial, potentially, is because it doesn’t alter the current balance of the court,” Cornyn said.
Some Republicans have all but closed the door on voting for the eventual nominee.
Sen. Ted Cruz, R-Texas, said Biden’s pledge was “offensive.” Sen. Roger Wicker, R-Miss., told a local radio show that the nominee will be a “beneficiary” of what he called “affirmative racial discrimination.”
“This new justice will probably not get a single Republican vote,” he said.
‘A strict constructionist’
The White House has pushed back against the attacks, suggesting that Biden’s pledge was similar to Ronald Reagan’s campaign promise in 1980 to put a woman on the Supreme Court.
Judiciary Committee Chair Dick Durbin, D-Ill., visited the White House with ranking member Chuck Grassley, R-Iowa, to discuss the vacancy. After the meeting, Durbin spokeswoman Emily Hampsten promised a “fair and timely” confirmation process.
Asked whether he’s open to voting for the nominee, Sen. Josh Hawley, R-Mo., said he will wait to see whom Biden chooses. Asked whether there are any Black female judges he could support, Hawley mentioned Janice Rogers Brown, 72, a retired conservative appeals court judge.
Sen. Lindsey Graham, R-S.C., a senior member of the Judiciary Committee who has kept the door open to a Biden nominee, talked up one of the prospects: U.S. District Judge Michelle Childs of his home state, South Carolina.
“Michelle Childs is awesome. If she is selected I’d be very inclined to” vote for her, Graham said. “She’s incredibly well-qualified.”
As for potential GOP votes, Graham said: “Michelle Childs would be somebody that might get a handful of votes. I can’t say beyond that.”
He declined to remark on other Biden prospects, such as Judge Ketanji Brown Jackson, whom Graham voted to confirm to the U.S. Circuit Court of Appeals for Washington, D.C., last year.
“We’ll see what he does,” Graham said.
Graham and Sens. Susan Collins of Maine and Lisa Murkowski of Alaska are the only Republicans who have voted for more than half of Biden’s 44 Senate-confirmed judges.
“I’m always open to supporting any nominee. I’ll apply the same standards that I always do in evaluating them,” Collins said in an interview. “And I’m sure that Senator Durbin will conduct a fair process.”
Democrats promise ‘fair and timely’ process
In recent years, as ideology has become a bigger factor in how senators vote on high court picks, Republicans are more likely to oppose nominees unless they profess a narrow view of federal authority.
“I think Republicans will take a look at the individual based upon their competency, their background, their writings and whether or not they are a strict constructionist,” said Sen. Mike Rounds, R-S.D.
Senate Minority Leader Mitch McConnell, R-Ky., is trying to pressure Biden to pick a centrist for the vacancy, citing the 50-50 split in the Senate to argue that he should make a consensus pick.
McConnell spoke to Biden on Tuesday afternoon, a McConnell aide said, adding that he wants a judge who believes in “originalism and textualism,” as well as “judicial independence.” If the 50 Democratic-voting senators stay unified, with Vice President Kamala Harris breaking any tie, McConnell would lack the power to block a Biden nominee after his party abolished the 60-vote rule for Supreme Court picks in 2017.
Democrats were reminded about their fragile majority Tuesday when the office of Sen. Ben Ray Luján, D-N.M., revealed that he had suffered a stroke. His chief of staff said he is “resting comfortably” at the hospital and is “expected to make a full recovery.”
Sen. Sheldon Whitehouse, D-R.I., said he is unsure that Republicans will “go to the mattresses over this selection” after they muscled through a 6-3 majority: “If you’ve captured a court to do your bidding, you don’t necessarily want to draw lots of controversy to the institution.”
“I think that the presidentials are going to be doing their thing to appeal to the base and all that stuff, but it’s not clear that it’s in Mitch McConnell’s best interest to create a war at this point,” he said. “Once you’ve got the burglar successfully in the house, you don’t necessarily want to cause a lot of attention.”
