I have no news story to link to here. To the contrary, I haven’t seen this question asked once in the flood of coverage since Kennedy’s announcement yesterday. So let’s ask it.
With McCain out, Senate Republicans have zero margin for error on the nomination. It’s 50/49. Either Susan Collins or Lisa Murkowski — or anti-Trumpers Jeff Flake and Bob Corker, both of whom are retiring — could sink the nominee if Democrats hang together. And they will, I think. The Democratic base will get so hot over this that Manchin and the rest of the red-staters will hang back to see what Republicans are doing. If Collins or anyone else makes some disapproving noises that imperil the nominee, pressure from the left on Manchin et al. to vote no and kill the nomination will be enormous. It’s easy to imagine red-state Dems supporting a nominee who’s going to be confirmed anyway on a party-line Republican vote. It’s almost unimaginable that they’d *rescue* a nominee who’s headed for defeat due to a Republican split.
No margin for error for Cocaine Mitch. Unless, that is, McCain were to step down suddenly. Republicans wringed their hands for months about his status since, under Arizona law, a vacancy before June 1 would have made his seat the subject of a special election this fall, forcing the GOP to defend both of the state’s Senate seats in a bad political climate. But that law no longer applies. By holding his seat until June 1, McCain ensured that a vacancy would be filled by Republican Gov. Doug Ducey instead. If he resigned tomorrow, Ducey could name a Republican replacement and that person would be seated within weeks, maybe even before Trump names his SCOTUS nominee. It’d be 51/49 again. And despite his antipathy towards POTUS, that might be the way McCain wants it. I remind you that not only did he vote for Gorsuch, he voted to nuke the filibuster to do it. In fact, Maverick’s voted yes on every Supreme Court nomination he’s faced in the Senate, per Dan McLaughlin. Him being away from Washington really is costing the GOP a likely yes.
The media may not be thinking about it yet but McConnell undoubtedly is, as is McCain. We’ll hear more about it soon, no doubt. As for the other guy from Arizona, who loathes Trump as much as McCain does, is *he* planning to make trouble for the nominee? Remember, it was just a few days ago that Jeff Flake said he was prepared to start blocking judicial nominations until he gets a vote on a bill stripping Trump of his “national security” tariff power. What if Flake borks the nominee because McConnell won’t let him vote against protectionism?
“My goal here is not to block judges. My goal is to get a vote on tariffs, and I have all the leverage I need with circuit court nominees,” he said. The Supreme Court “is unaffected. I have all the leverage I need. I certainly wasn’t anticipating a Supreme Court vacancy, but it’s unaffected.”
Flake also said his standards for judicial nominations isn’t changing, either.
“This is important in its own right. I want someone who will interpret the Constitution and not legislate from the bench; it’s what I’ve always said in terms of how I would view any nominee,” Flake said. “It’s what I did with (Supreme Court Justice Neil) Gorsuch and I thought he passed the test. It’s what I’ll do with this one.”
Well, okay. He won’t hold up the nominee — but might he vote no to spite Trump? Eh. Anything’s possible, but this FiveThirtyEight by-the-numbers breakdown of how often Republican senators do and don’t vote with Trump is useful as a predictor. Both Flake and Corker are pro-life; they’d have no reason *except* spite to oppose a nominee, sight unseen, who’s likely to fit comfortably within their ideal of Supreme Court justices. If they did, the price could be steep: They’d be risking a Democratic Senate takeover this fall and a much more centrist nominee confirmed instead in January. There are plenty of ways to spite Trump and strike a blow for conservative government, like Corker’s tariff bill, that don’t involve setting the Supreme Court on fire when the GOP is finally poised to shift it to the right.
If Democrats can’t flip Corker or Flake, their options get very thin. Rand Paul is always a wild card but he was onboard with Gorsuch and is likely to back another right-wing Gorsuch-esque nominee. Plus, Rand has been known to cave when the pressure is on to confirm a Trump nominee, as Mike Pompeo could tell you. Realistically, Collins and Murkowski are the only game in town for Schumer. And if McCain steps down and hands McConnell an extra vote, Schumer would need both to stop the nomination. It’s not just Cocaine Mitch who has no margin for error. Schumer has none either.