WASHINGTON — The Democrats’ hopes of sinking President Donald Trump’s upcoming nominee for the Supreme Court hinge on a pair of Republican women who have broken with their party over abortion and dismantling the Affordable Care Act.
With the GOP holding a 51-to-49 majority in the Senate, the votes of Sens. Lisa Murkowski, Alaska, and Susan Collins, Maine, will almost certainly be needed for Trump’s eventual nominee to be confirmed, making them the most influential senators in the battle to replace Justice Anthony Kennedy, who announced Wednesday that he is retiring.
Both will be the target of intense lobbying as Trump is expected to put forward a pick who would shift the court rightward, putting in play issues such as abortion, gay rights and the government’s role in health care.
The two senators are trying to play down their influence as the frenzy over the Supreme Court opening grows and the pressure on them builds.
“It’s been kind of interesting in this firestorm. Afterward, everyone is focused on Lisa and Susan,” Murkowski said in an interview Thursday. “If I were John or Jerry or Bill, I’d say, ‘Wait a minute. How come I’m not being viewed as an important voice in this process?’ “
But Murkowski and Collins are the rare elected Republicans in Washington who support abortion rights and voted against repealing the Obama-era Affordable Care Act — issues Democrats are using to frame the battle over the Supreme Court nominee.
“A woman’s right to control her body is at stake with this next nominee,” said Sen. Dianne Feinstein, California, who as the top Democrat on the Judiciary Committee will lead her party’s scrutiny of Trump’s nominee. Asked how much Collins and Murkowski should weigh abortion in their decision, Feinstein said, “That’s up to them. But for me, it’s huge. Because I know what life was like before and most young women don’t.”
Murkowski called the future of Roe v. Wade — the 1973 decision that legalized abortion nationwide — a “significant factor,” but she stressed that in no way will that landmark ruling be the sole factor for her.
“And I don’t think it should be the only factor for anybody,” Murkowski said. “It’s not as if those are the only matters that come before the Supreme Court.”
Collins said Thursday that although she wouldn’t ask Trump’s pick how he or she would rule on specific issues, she always presses judicial nominees about their views on legal precedent.
“I do get a sense from them on whether or not they respect precedent,” Collins said. “And from my perspective, Roe v. Wade is an important precedent and it is settled law.”
Republicans, well aware that Democrats will try to pin down Trump’s pick on contentious issues, are already making the case that any nominee should abide by the standard Justice Ruth Bader Ginsburg used during her 1993 hearings: To give “no hints, no forecasts, no previews” on how they might rule.
“I think the only thing that’s going to influence those two very good senators is … how they perform in the hearing,” Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, said. “Because Collins and Murkowski would obviously respect the Ginsburg rule.”
The scrutiny the two senators face is far from unfamiliar. Collins is one of a dwindling core of moderate Republicans who have been willing to defect from the party on contentious issues, including abortion and guns. And like Collins, Murkowski has an independent streak — one that helped her win re-election in 2010 through a write-in campaign after she lost in the GOP primary. Both senators also opposed the nomination of Betsy DeVos as education secretary, forcing Vice President Mike Pence to cast the tie breaking vote to confirm her.
But they have been consistent “yes” votes on Trump’s picks for federal courts.
The two senators have voted on five of the most recent Supreme Court justices, with Collins serving as a reliable “yes” while Murkowski rejected both of President Barack Obama’s nominees: Elena Kagan and Sonia Sotomayor.
Of the 25 names Trump has listed as potential justices, 17 have been confirmed by the Senate for federal judgeships, while two are pending. Murkowski has supported all of the candidates nominated during her time in the Senate while Collins voted against one: Judge William Pryor of the Court of Appeals for the 11th Circuit.
Groups that favor abortion rights have began flooding Senate offices with phone calls and are widening the universe of targeted Republicans beyond Collins and Murkowski to Sen. Dean Heller, Nevada, the most politically vulnerable Senate Republican on the ballot this fall.
Ilyse Hogue, the president of NARAL Pro-Choice America, said calls from her group’s activists to Senate offices in the 24 hours after Kennedy’s retirement announcement Wednesday were three times the volume of the calls that resulted immediately after Neil Gorsuch was nominated in January 2017 to replace the late Antonin Scalia.
“Sens. Murkowski and Collins have already laid down the marker saying that they stand by Roe, they believe in legal access to abortion,” Hogue said. “It’s about upholding their word through this vote, and we’re going to make sure that the public support is there for them in their states and that there will be a lot of frustration and anger if they don’t.”
Public polling indicates a nation split over abortion. The most recent nonpartisan survey to ask whether the procedure should be legal in all or most cases is a Public Religion Research Institute poll in March, which found 54 percent of respondents saying that abortion should be legal in most or all cases vs. 43 percent saying it should be illegal in most or all cases.
Collins and Murkowski — as well as a small cadre of moderate Democratic senators — are likely to receive heavy attention from Trump administration officials as the White House tries to secure support for the president’s yet-to-be named nominee.
Murkowski already had one suggestion for the administration: Consider people who may not be on the shortlist crafted during Trump’s presidential campaign with heavy input from the Federalist Society. She said she wants a chance to weigh in on potential candidates.
“I don’t know how we got so wedded to that list. That was not created by senators here,” she said.
Marc Short, the White House’s director of legislative affairs, noted that he, Pence and White House counsel Donald McGahn had met with Collins, Murkowski and swing Democrats such as Sens. Joe Donnelly, Indiana, and Joe Manchin III, West Virginia, as they considered Gorsuch last year.
“I think that you will see continued White House outreach,” Short said. “Stay tuned on the specifics.”
The Washington Post’s Scott Clement and Erica Werner contributed to this report.