In interviews this week, Senate Democrats suggested that they would also like to see a broad bipartisan vote. While they stressed that winning over Republicans shouldn’t be the deciding factor for Biden, they argued that it would send a signal to the public that the high court isn’t as politicized as many perceive it to be.
“For the institution, it’s important because the Supreme Court has become so polarized that a bipartisan vote might well help to begin to restore some of the credibility it has lost,” said Sen. Richard Blumenthal (D-Conn.). “But I don’t think that ought to be a decisive question to the president.”
The White House has been judicious about which Republicans the president consults with personally. Among those he’s talked to are Sens. Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah — all senators who have worked directly with the administration in the past. Biden also placed a call to Senate Minority Leader Mitch McConnell and met with Sen. Chuck Grassley (R-Iowa), a former colleague and the Judiciary panel’s ranking member.
“It definitely matters to the president,” Collins said. “I don’t think he would have called me twice and also his legal counsel came and talked to me about some of the candidates. And you add that to the fact that [Democratic Judiciary Committee Chairman] Dick Durbin called me early on. So I think that indicates that the president very much wants a bipartisan vote.”
But it’s still an open question of how many Senate Republicans would actually support a Democratic pick to the Supreme Court — White House officials and others involved in the process are privately skeptical that many will, even as officials have publicly emphasized that they will put forward a nominee deserving of bipartisan backing.
In addition to early concerns about the reaction to Biden’s pledge, the universe of Republicans who have consistently backed his judicial picks is small. And one of those, Sen. Lindsey Graham (RS.C.), is openly lobbying for South Carolina circuit court judge Michelle Childs, suggesting that other picks could be “problematic.” The South Carolinian, who has consulted with White House Counsel Dana Remus but not Biden himself, publicly predicted that a vote for Childs would be bipartisan.
Inside the White House, some officials have grown exasperated with the public pressure campaign for Childs, not just from Graham, but also from Rep. Jim Clyburn (DS.C.), who has led the charge for her selection, according to three sources familiar with the dynamic.
Those officials believe the open push for Childs has put Biden in a box. If he were to select Childs it would be interpreted as a political play — designed either to reward Clyburn for his backing or cash in on Graham’s pledge for bipartisan support. But the sources also stressed that those feelings dissipated a bit on Wednesday, after Clyburn was quoted in the Washington Post saying he didn’t see his lobbying as an ultimatum.
In the meantime, the wary approach to Republicans has continued.
“The president has the unique perspective of a former Senate Judiciary Committee chairman who presided over Supreme Court nominations made by Republicans and Democrats,” White House spokesman Andrew Bates said. “He has been direct with his advisers that it was a driving priority for him to actively seek the advice of lawmakers in both parties before asking their consent about a nominee.”
“That is why the President, the Vice President, and senior White House officials have been in direct contact with lawmakers as he considers qualified, experienced nominees in the mold of Justice Breyer who is deserving of bipartisan support,” he continued. “And he’s grateful to the Republicans who are providing their perspectives and recommendations.”
In addition to Biden, Vice President Kamala Harris has also called Republican senators Deb Fischer of Nebraska, Joni Ernst of Iowa and Shelley Moore Capito of West Virginia to discuss the upcoming confirmation. And several Senate Republicans on the Judiciary Committee said they or their staffers had spoken to the White House counsel.
Grassley described the White House outreach as “so far, very good” and added that he is encouraging Republicans to “let people know early if you want to meet with [the nominee] so that we aren’t accused of stringing things along.”
Most Republicans at this point, however, are holding back from weighing in on the upcoming confirmation, noting that Biden hasn’t made his pick. Sen. Josh Hawley (R-Mo.), a member of the Judiciary Committee who hasn’t supported a single Biden judicial nominee, said he’s had a “good conversation” with the White House counsel but that the extent of Republican influence will only be known once Biden makes his choice.
“Let’s see who he nominates,” Hawley said. “That will really tell the tale if they listened, and if they want bipartisan support. I said to the White House counsel I thin it’s possible to get bipartisan support here if you’ll nominate someone who is a pro-Constitution, pro-rule of law judge.”
Senators on both sides of the aisle aren’t expecting a particularly dramatic Supreme Court confirmation, in part because Breyer’s replacement won’t shift the 6-3 conservative tilt of the high court. It’s also the first time Democrats will benefit from a 2017 GOP rules change that allows them to confirm a Supreme Court pick by simple majority vote.
But Democrats are also hoping to avoid a situation like the 2020 confirmation of Justice Amy Coney Barrett, who became the first Supreme Court justice in more than 150 years to be confirmed without the support of a single member of the minority party.
“I think [Biden] should be driven in his selection by the qualifications, record and judicial temperament of the nominee,” said Sen. Jon Ossoff (D-Ga.), a member of the judiciary committee. “And I also think that it would be good for the nation and the court for there to be bipartisanship but I don’t think that should drive the president’s decision making.”
Jonathan Lemire contributed to this report.