Published June 29, 2018 / Updated August 7, 2020


The five votes that will decide the fate of the Supreme Court

by Chris Thomas

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Photo by Claire Anderson

Anthony Kennedy — longstanding swing vote on the Supreme Court — recently announced his retirement. Despite Mitch McConnell’s insistence that…

… the Senate is poised to move quickly on whomever President Trump nominates to the Court.

This will change the balance of the Court

Kennedy, though appointed by Ronald Reagan and conservative in his politics, was never an ideologue in his jurisprudence. He sat between four hard-line conservatives and four center-left liberals and the courts decisions over the course of his tenure reflected both that balance and his swing vote. Generally speaking, Kennedy’s vote proved to be decisive in nearly 90% of Supreme Court Cases.

Image liberated from The Washington Post

Trump (probably) has the votes

Simply put, the Trump has the votes to confirm whomever he chooses to nominate. Republicans control 50* votes in the Senate plus Vice President Pence’s tie-breaker. Republicans killed the filibuster for Supreme Court nominees when Democrats attempted to halt the nomination of Neil Gorsuch so the confirmation of Kennedy’s replacement will require a simple majority of the body — 50 votes plus the Vice President.

If the GOP votes as a block, they can confirm anyone they want to. That will allow them to take control of the Court for the foreseeable future, making this confirmation a pivotal moment for LGBTQ and Women’s rights.

Realistically, there is nothing the Democrats can do to stop this.

Perfect Unity

But getting anyone not openly friendly to LGBTQ and especially abortion rights though the Senate is going to require perfect unity on the part of the Republican Party. A single Republican defector could derail the confirmation push, potentially until after the 2018 elections. A single Democratic defector could end Democratic hopes of preventing that.

The Republicans know this. The Democrats know this. The Trump administration knows this. Everyone knows this. Assuming McCain can’t vote, the five Senators on whom a Republican takeover of the Supreme Court depends are:

  1. Susan Collins (R-Maine)
  2. Lisa Murkowski (R-Alaska)
  3. Joe Donnelly (D-Indiana)
  4. Heidi Heitkamp (D-North Dakota)
  5. Joe Manchin (D-West Virginia)

Democrats see Collins and Murkowski as targets because they’re both pro-choice. Republicans will target Donnelly, Heitkamp, and Manchin as all three face reelection bids this year in states won by Donald Trump in 2016.

Tell Congress What You Think

These five votes will probably decide the future of the Supreme Court. Especially if you live in Maine, Alaska, Indiana, North Dakota, or West Virginia we need your voice. You can write to your Senators by sending the word Resist to Resistbot on Facebook Messenger, Telegram, or as a Twitter direct message. If none of those work for you, Resistbot also supports old fashioned SMS: text RESIST to 50409 to get started. It takes 2 minutes to make a difference.

If you live elsewhere in the country your voice still matters. Write your Senator and tell them how important this vote is to you. Perfect unity means just that perfect unity. While not all Senators will be targeted in the coming Court fight, every vote matters.

* Technically the GOP controls 51 votes but one of those is John McCain who has been largely absent from the chamber on account of his battle with a brain tumor. McCain is unlikely to make an appearance but his seat is, on paper at least, a Republican one.

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