By breaking with Senate Minority Leader Mitch McConnell (R-Ky.) over Judge Ketanji Brown Jackson, three Republican moderates sent a clear message that they aren’t happy about how partisan Supreme Court confirmation proceedings have become.
Sens. Lisa Murkowski (Alaska), Susan Collins (Maine) and Mitt Romney (Utah) firmly rejected the tactics of more conservative colleagues on the Senate Judiciary Committee, who grilled Jackson during her confirmation hearings and accused her of being soft on child pornography offenders.
Murkowski told reporters that she thought colleagues such as Sens. Josh Hawley (R-Mo.) and Ted Cruz (R-Texas) went too far in challenging Jackson to defend her record, though she didn’t mention anyone by name.
“Some were not super great,” she said. “I think there was a level of personal attack that was unwarranted.”
All three centrist Republicans have raised concerns about how Supreme Court confirmation debates have become partisan food fights.
Collins said she hopes her vote for the nominee will help lower the partisan temperature of the Senate confirmation process.
“I think what needs to happen is first of all people need to ignore groups like Demand Justice that are pressuring them to vote one way or the other on Supreme Court justices,” she said, referring to the progressive advocacy group that pressured Justice Stephen Breyer to retire and in February announced a $1 million advertising buy to support Jackson’s nomination.
“And second, we need to get back to what Congress clearly delineates as the role for the Senate versus the president,” Collins said, alluding to her view that Congress should give the president, regardless of party, “considerable deference” on high court nominees.
She argues that giving more deference to the president in filling the court, as the Senate did when it confirmed Reagan nominee Antonin Scalia 98-0 and Clinton nominee Ruth Bader Ginsburg 96-3, “helped keep the court above the political fray.”
Romney, who voted against confirming Jackson to the D.C. Circuit Court of Appeals last year, said he grew more comfortable with the idea of her sitting on the Supreme Court after meeting her in person and reviewing her record.
“I had concerns in the past that she was not part of the mainstream. During our conversation together and during the hearing, I concluded that she was. That plus her qualifications got me where I was,” he explained.
Romney, who was elected to the Senate in 2018, said he’s not exactly sure how future confirmation debates should play out but expressed concern about the intense partisanship surrounding recent nominees.
“The real question for me will be when you have a party in power in the Senate that’s different from the president, how are we going to get the judiciary filled?” he said. “That’s why I think Sen. Collins raised the issues she did.”
It’s a message that the moderates want to send to the leaders of both parties, including Senate Majority Leader Charles Schumer (D-N.Y.), who helped lead the staunch resistance to conservative Justices Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020.
After Collins, Murkowski and Romney sent a clear signal that they want to turn down the partisan temperature surrounding Supreme Court confirmation proceedings, McConnell on Tuesday declined to say whether he would allow President Biden to fill another court vacancy if Republicans win back the Senate majority in November.
“What I can say with pretty great certainty is the president who ran as a moderate and who has governed as Bernie Sanders would, would have to spend the last two years of his term being a moderate,” McConnell told reporters when asked if he would commit to holding a vote on another Biden Supreme Court nominee if he again becomes Senate majority leader in 2023.
McConnell famously kept Scalia’s seat vacant for most of 2016 after the conservative justice died in February of that year, refusing to grant then-President Obama’s nominee, Merrick Garland, a hearing or a vote.
This has raised the prospect that McConnell may play the same card again or that Schumer or a future Democratic majority leader may do the same to a Republican president.
Sen. Lindsey Graham (R-S.C.), a senior member of the Senate Judiciary Committee, on Monday said that Republicans would not have allowed Jackson to join the Supreme Court if they controlled the agenda.
“If we get back the Senate and we’re in charge of this body and there’s judicial openings, we will talk to our colleagues on the other side. But if we were in charge, she would not have been before this committee. You would have had somebody more moderate than this,” he said.
But moderates worry these kinds of threats could undermine the independence and influence of the Supreme Court over the long run.
Murkowski, who is up for reelection this year, said she doesn’t know if future presidents will be able to put new justices on the court when their party doesn’t also control the Senate.
“Think about what that will do to the court,” she said. “Think about the position that the legislative branch will put the judiciary in if we do not allow that to proceed.
“It would mean that you would have a court that is handicapped. Remember, these are three separate but equal branches and we would be handicapping one of the three out of political motivation,” she said. “What happens when you have a new president come in and a new Senate, a new majority in the Senate, and turnabout is fair play?
“Eventually you get to a place where you cannot confirm justices, and they don’t live forever. What are we doing? Killing off the court. We’re heading in a place that I think is dangerous for the courts.”
Murkowski, Collins and Romney, who each played key roles in negotiating last year’s $1 trillion bipartisan infrastructure bill, the biggest bipartisan accomplishment of Biden’s first year in office, say it’s more important to consider a nominee on his or her merits than to score political points by maintaining partisan unity.
Together with Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.), they make up the Senate’s “Common Sense Caucus,” a group that’s devoted to showing the Senate can still work on a bipartisan level to get things done. The caucus has criticized loud calls from both sides of the political spectrum to get rid of the Senate filibuster and turn the upper chamber into a body more resembling the House, where the majority party rules absolutely.
“I think we clearly had an impact on the infrastructure bill, where there were five Democrats and five Republicans who worked so hard — together more than 50 meetings — and we were able to produce a bill that eventually passed and represented the largest investment in infrastructure since the interstate highway system,” Collins said.
Collins, Murkowski, Romney, Manchin and Sinema are trying hard to get bipartisanship working in the Senate again, but they also realize the polarizing forces in American politics are much larger than the interpersonal dynamics of Capitol Hill.
“In many ways, Congress right now is reflecting an increasingly polarized America. So I think it starts back home with people realizing that we need to work together to identify common problems and be more respectful and civil in our dialogue,” Collins said.
Jackson is expected to be confirmed by the full Senate later this week.