Key Senate Republicans keep signaling their approach to the upcoming Supreme Court confirmation process will be one of “respect” rather than obstruction, to contrast with how they felt Democrats treated former President Donald Trump’s high court appointees.
Sen. Charles E. Grassley of Iowa, the top Republican on the Senate Judiciary Committee who met with President Joe Biden this week, said Thursday that Republicans will scrutinize the qualifications of the pick but “we will treat the nominee with dignity, fairness and respect while we do so.”
Grassley then went off of his scripted remarks to add that Republican senators need to make it known if they want to meet with the nominee, so that they can’t be accused of using that part of the process to be “deliberately delaying consideration of the nominee.”
That echoes other comments from Minority Leader Mitch McConnell of Kentucky and other Republicans since liberal Justice Stephen G. Breyer announced he would retire at the end of the court’s term. Biden said he would announce a nominee by the end of February, but he will not be able to alter the overall ideological balance of the court, where conservatives now have a 6-3 advantage.
When it comes to the forthcoming nominee, a number of Republican members of already have been criticized for their language and comments on Biden’s commitment to name a Black woman to the vacancy. Sen. Roger Wicker of Mississippi said in a radio interview that such a pick would be “the beneficiary of this sort of quota” that he called “affirmative racial discrimination.”
Sen. Ted Cruz of Texas, a Judiciary Committee member, has called that move “actually an insult to Black women.” Sen. John Kennedy of Louisiana, also on the panel, told a reporter that he wants a nominee “who knows a law book from a J. Crew catalog” and who is “not going to try to rewrite the Constitution every other Thursday to try to advance a ‘woke agenda.’”
But when it comes to the Senate process, some Republicans have sought to set a different tone. Texas Republican Sen. John Cornyn, a member of the Judiciary Committee, has criticized Biden’s commitment to select a Black woman and said on the Senate floor Monday that liberals want Biden to pick “a partisan who will deliver political wins.”
Cornyn then spoke of “respectful” treatment. “Unlike some of the mudslinging we saw during the confirmation of Justice [Brett M.] Kavanaugh, I expect this process to be fair and dignified,” Cornyn said.
McConnell emerged from a Republican policy lunch Tuesday and told reporters that it’s hard to comment on a nominee until one is named, but to anticipate the Republican minority will “treat a nominee with respect and going through the process, you know, in a serious and thoughtful way.”
Senate Minority Whip John Thune of South Dakota followed up a minute later to add that “we will make sure that whoever he ultimately nominates, it’s a through, fair vetting, respectful process.”
Sen. Lindsey Graham of South Carolina, a Judiciary Committee member considered to be among the Republicans who are more open to voting for a Biden pick, even has advocated for U.S. District Judge J. Michelle Childs from his state and said he could see supporting her.
Cornyn and Graham also are among the Judiciary Committee members who have thrown cold water this week on the idea that panel Republicans could boycott a committee vote on the nominee — a move that Senate rules experts say could cause procedural headaches for Democrats but ultimately wouldn’t prevent a confirmation.
Chairman Richard J. Durbin of Illinois told reporters he didn’t expect such a boycott from committee Republicans. Democrats boycotted the committee vote of Justice Amy Coney Barrett over objections to the quick confirmation process and vote just ahead of the 2020 presidential election, but because control of the Senate was not split 50-50 it did not raise the same procedural issue.
There are still members of the Judiciary Committee who could add heat to the confirmation process. Missouri Republican Sen. Josh Hawley, a Judiciary Committee member and possibly a 2024 presidential candidate, said to “expect a major battle in the Senate” if Biden picks “a left wing activist” who will agree with the president’s vaccine mandates or immigration policies.
But as long as the 50 senators who caucus with Democrats stick together, the party has procedural and political advantages to confirm Biden’s pick without any Republican votes. No members of that caucus, 48 Democrats and two independents, have voted against any of Biden’s judicial nominees on the Senate floor.
White House moves
Grassley on Thursday also thanked Biden for “making it clear that we will have a process that allows us to diligently and fairly review the nominee’s record.”
Biden had brought Grassley and Durbin to the White House on Tuesday, part of a number of moves that appeared aimed at ensuring bipartisan buy-in on at least the confirmation process, if not the nominee.
“I’m serious when I say it, that I want the advice of the Senate, as well as the consent we can arrive on who the nominee should be,” Biden said ahead of that meeting.
“I invited — we’re different parties — but two good friends down here. We’ve done an awful lot of Supreme Court justice together, Senator Grassley and I, as well with Senator Durbin,” Biden said at the meeting. “And we worked together in a lot of court nominations overall, but particularly Supreme Court nominees.”
The White House later announced that former Sen. Doug Jones of Alabama, a Democrat who represented a deeply red state, would advise Biden “on navigating the Senate confirmation process.”
The White House highlighted that Jones was the first Democratic senator from Alabama in a quarter century, and had “passed dozens of bipartisan bills into law and started a bipartisan tradition of reading Dr. Martin Luther King, Jr.’s ‘Letter from a Birmingham Jail’ in the Senate chamber.”
Durbin later told reporters that Biden was looking for the Senate to take around 40 days to work through the confirmation process. That includes time for senators to dig through a nominee’s history, past comments and written opinions, and prepare for a hearing that will follow a standard timeline of statements and questioning.
Durbin told reporters Monday that he’s spoken and texted several Republican senators who he thinks might be open to the idea of voting for a Biden nominee, and would continue that outreach this week.
“What I basically said to them was: We’re going to make the nominee available, and certainly any materials information you need, so you can draw your own conclusion as to whether she is worthy of your vote,” Durbin said.
“I think there are several Republican senators who may — underline may — consider voting for a Biden nominee to the court,” Durbin said.