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Analysis | Could Jones be a decisive vote on Trump’s Supreme Court nominee?

Chip Brownlee

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via Office of U.S. Senator Doug Jones

Republicans and Democrats in the U.S. Senate are gearing up for what could be a massive confirmation fight over President Donald Trump’s Supreme Court nominee, and Alabama’s junior senator, Doug Jones, in his first year of a short two-year term, will likely find himself right in the middle of it all.

Trump is expected to nominate a new associate justice to the Supreme Court in the coming weeks, following the retirement of the high court’s longtime swing vote, Associate Justice Anthony Kennedy, who will step down on July 31.

When Trump does make his pick for a new justice, he will be sending that nominee to a tightly divided Senate, one with 51 Republican senators, 47 Democratic senators and two independent senators who caucus with Democrats.

And there’s another complicating factor: Sen. John McCain, the Republican from Arizona who is battling an aggressive form of brain cancer,  has been largely absent since December, leaving Republicans with an even slimmer 50-49 majority.

Although Vice President Mike Pence, the president of the Senate, can vote in the case of a tie, Republicans will need the votes of everyone in their caucus to hold on to Kennedy’s seat.

To Republicans’ advantage, the Senate has effectively abandoned its filibuster rule so a 60-vote majority is no longer needed to end debate and a simple majority can confirm a judicial nominee. But a far-right nominee, one who outwardly opposes abortion and other hot-button issues — should Trump choose to go that route — may not have it so easy.

Some Republican senators have shown a willingness to break with their party. Sen. Susan Collins, a moderate Republican from Maine, insinuated Wednesday that she will take a hard look at any nominee who would consider overturning Roe v. Wade, the landmark Supreme Court decision that established the legal right to an abortion in 1973.

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“I view Roe v. Wade as being settled law,” Collins said. “It’s clearly precedent and I always look for judges who respect precedent,” Collins told reporters on Wednesday, according to The New York Times.

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Kennedy, during his 30-year tenure on the high court, served as a moderating voice and often sided with more liberal justices on issues like same-sex marriage and abortion rights. His vote halted efforts to overturn Roe v. Wade.

“Over the course of the last 15 or so years, probably going back a little bit further than that, the court has had two main camps, arguably one conservative camp and one liberal camp, and Justice Kennedy has walked right through the middle of that and has effectively had one of the most impactful terms, in my opinion, on the Supreme Court, as a function of procedure,” said University of Alabama Assistant Professor Allen Linken, an expert on the Supreme Court.

Abortion is likely to be the key issue when Senators do get a nominee. Many conservatives, including those in the Alabama Legislature, are hoping the Court, if it attains a favorable and reliable conservative majority, will take up a case and overturn the right to an abortion.

Republicans in the Alabama Legislature placed a constitutional amendment on November’s general election ballot that, if passed, would effectively declare Alabama an anti-abortion state and preemptively grease the wheels for banning abortion by law. The measure’s supporters said it was necessary to prepare if the Supreme Court tilted to the right.

With Collins’ comments Wednesday, it’s possible she would consider voting against a nominee who appears poised or primed to overturn that precedent. And Sen. Jeff Flake, another Republican from Arizona, said Tuesday — a day before any news of Kennedy’s retirement — that he would block all of Trump’s judicial nominees (there are many waiting to be confirmed to the federal bench) if the Senate doesn’t take a vote to prevent Trump’s new tariffs.

It’s not clear if his promise to stall any nominees would extend as far as a Supreme Court nominee, should the Senate get around to a vote while Flake is still in office.

“If there were a vacancy there? I hadn’t thought of that. I haven’t thought of that,” Flake said Tuesday before Kennedy’s resignation, according to the Washington Post.

If either of those senators went nuclear and split from their party on a Supreme Court confirmation, that could leave Republicans in deep water, searching for votes from centrist Democrats who might back a Trump nominee. Sen. Lisa Murkowski, R-Alaska, is also considered a potential swing vote.

When Associate Justice Neil Gorsuch was confirmed last year, three Democrats voted for him, Sen. Heidi Heitkamp, Sen. Joe Manchin and Sen. Joe Donnelly, who are all up for re-election in competitive races in heavily Republican states. All Republicans voted to confirm Gorsuch.

Even if all three of those Democrats decided to vote with their party and against a Trump nominee, that would still leave a newly elected Democrat from a state that is perhaps even more Republican and more supportive of Trump: Sen. Doug Jones from Alabama.

“Sen. Jones becomes a crucial vote if Republicans can’t keep 51 votes in the Senate or really 50 votes because of the president of the Senate, Vice President Pence,” Linken said.

And Trump’s nominee could decide the ideological tilt of the high court for decades to come, applying even more pressure to a confirmation vote.

“There’s no question that no matter who the president nominates and, assuming that person is confirmed, the court will become more conservative as we see it on some set of issues, even a substantial set of issues,” said University of Alabama Law School Professor Paul Horwitz, a former clerk on the 11th Circuit Court of Appeals and expert in constitutional law.

But Horwitz said it’s unlikely that Republicans would vote against a GOP nominee, though their influence could have some effect.

“Certainly, it’s a closely divided Senate with a couple of senators who have some leverage. And that may affect who gets nominated, although it is difficult to say,” Horwitz said.

Both professors said it was unlikely it would get to that point, though, because Republicans are unlikely to need Jones’ vote.

Jones said during the campaign that he considers abortion a settled view, and he has said nothing to suggest that he would vote for a nominee to the court that would be likely to overturn that precedent.

Months before the election, Jones said he supports a woman’s right to choose what to do with her own body.

“I’m going to stand up for that, and I’m going to make sure that that continues to happen,” he said. “I want to make sure that as we go forward, people have access to contraception, they have access to the abortion that they might need, if that’s what they choose to do.”

And since then, he joined other Democrats, Collins and Murkowski in stopping a bill to ban abortions after 20 weeks. Three other Democrats, Manchin, Donnelly and Sen. Bob Casey, R-Pennsylvania, voted in support of the measure.

Regardless, Jones — should he want to be re-elected in 2020 when his term is up — is stuck in a difficult situation that will require him to balance the desires of his Democratic base and moderate Republicans who he will need to crossover and vote for him in two years.

 

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