If early indications of Donald Trump’s Supreme Court pick are any accurate indication, then Thomas Hardiman is set to be one of two top options to replace Justice Anthony Kennedy, who announced his retirement plans earlier this month.
When this vote does take place, it’s likely that the voting split between approval and rejection of confirmation will be divided across the partisan lines, with most (if not all) Republicans approving Hardiman’s appointment and most Democrats rejecting it.
Especially given the tumultuous appointment process of Gorsuch, in which many Democrats believed Senate Majority Leader Mitch McConnell stole President Obama’s nomination of Merrick Garland. Only three Democrats ended up approving Gorsuch’s nomination. This next Supreme Court decision looks to be just as contentious, if not more so.
Most of this is a pretty cut and dry procedure; it’s common for politicians to vote based off of their party line. However, if all of the Democrats in the Senate vote against Hardiman, then some of them might have some explaining to do for their constituents, because eighteen Democrats voted for Hardiman to the third circuit in the United States Court of Appeals in 2007.
Senators Bernie Sanders, Dianne Feinstein, and Sheldon Whitehouse are among the eighteen Democrats who voted for Hardiman and are still in the Senate.
In the 2007 decision, Hardiman was approved with a unanimous 95-0 vote. Here’s what you need to know.
Democrats Who Voted for Hardiman in 2007 & Are Still in the Senate
Several notable Democrats voted for Hardiman in 2007, including Senator Feinstein, Sanders, Schumer, and Casey. However, some of those Senators have already begun to speak out against Trump’s Supreme Court pick, even prior to his picking one.
During a Planned Parenthood event in Oakland this week, Feinstein warned the crowd about the possibility of the next Supreme Court pick helping to overturn Roe v. Wade upon appointment. “When it comes to protecting a women’s right to control her own body, the effect of one seat on the Court has never, ever been clearer,” Feinstein said. “Based on the president’s own promises and track record, we know that women’s rights are in serious and grave danger.”
Though she didn’t speak directly about Hardiman, she did note that Democrats (even if presenting as a united front) won’t be able to block Hardiman all on their own. “I do know that [some of the Republican female Senators] are pro-choice, and pro-choice is a responsibility, and it in a sense is our birthright as women,” she said.
The full list of Democrats who voted for Hardiman in 2007 and are still in the Senate are the following:
Sherrod Brown (OH); Maria Cantwell (WA); Ben Cardin (MD); Bob Casey (PA); Dianne Feinstein (CA); Amy Klobuchar (MN); Patrick Leahy (VT); Claire McCaskill (MO); Robert Menendez (NJ); Patty Murray (WA); Bill Nelson (FL); Jack Reed (RI); Bernie Sanders (VT); Chuck Schumer (NY); Debbie Stabenow (MI); Jon Tester (MT); Sheldon Whitehouse (RI); Ron Wyden (OR).
Democrats Who Missed the Hardiman Vote in 2007 & Are Still in the Senate
Senator Richard “Dick” Durbin of Illinois is the only Democrat who missed the Hardiman vote. Recently, he weighed in on the importance of this latest Supreme Court pick, telling NBC’s “Meet the Press” that this appointment was more significant for American history than the next election.
“It’s about more than the next election,” Durbin said. “It’s about what country the United States of America is going to chart as its course in the future on this Supreme Court.”
Though Durbin was not present for the vote in 2007, he has actively called upon Democrats to resist temptation to vote for Hardiman, citing how “totally inconsistent” it is for Republicans to push for a pre-midterms vote when they didn’t allow this to happen with Merrick Garland in 2016. Therefore, he has called for Democrats to demand a delay in voting until after the 2018 midterms.
Democrats Who Were Not in the Senate in 2007
Several notable Democrats were not in the Senate at the time of the 2007 vote, including Cory Booker, Kamala Harris, and Tim Kaine.
Of the Supreme Court appointment, Harris has actively denounced Trump’s entire short list, demanding that the Senate wait until after the midterms to make a vote. She tweeted, “The President’s list of potential SCOTUS nominees are… conservative ideologues, not mainstream jurists. We cannot and will not accept them to serve on the highest court in the land.”
Senator Booker has taken a similar stance, arguing that the fact of the President’s current criminal investigation is more than enough reason to postpone voting until after the midterms, according to a speech he gave at a Senate Judiciary Committee meeting (as seen below).
The full list of Democrats who were not present in 2007 but will be voting for this Supreme Court appointment are as follows:
Tammy Baldwin (WI); Richard Blumenthal (CT); Michael Bennett (CO); Cory Booker (NJ); Thomas Carper (DE); Christopher Coons (DE); Joe Donnelly (IN); Tammy Duckworth (IL); Kirsten Gillibrand (NY); Kamala Harris (CA); Maggie Hassan (NH); Martin Heinrich (NM); Heidi Heitkamp (ND); Mazie Hirono (HI); Doug Jones (AL); Tim Kaine (VA); Angus King (ME); Joe Manchin (WV); Ed Markey (MA); Jeff Merkley (OR); Chris Murphy (CT); Gary Peters (MI); Brian Schatz (HI); Jeanne Shaheen (NH); Tina Smith (MN); Chris Van Hollen (MD); Mark Warner (VA); Elizabeth Warren (MA).
Republicans Who Voted for Hardiman in 2007 & Are Still in the Senate
Given that Hardiman is a Republican nominee, it’s likely that most, if not all, Republican Senators will vote to pass him. However, one notable Republican who may vote against Hardiman is Senator Susan Collins.
Collins is known to be a pro-choice Republican, and abortion activists have taken note of this fact, even going so far as to start a campaign of mailing Collins wire hangers as a reminder of how women used to conduct abortions before they were legal.
Collins has stated in the last week that she will not vote for a nominee who is “hostile to Roe v. Wade”. She and Lisa Murkowski are widely considered to be the two swing voters, given that they are the two Republican Senators who are firmly pro-choice.
The full list of Republicans who voted for Hardiman in 2007 and are still in the Senate are the following:
Lisa Murkowski (AK); Richard Shelby (AL); Richard Burr (NC); John Isakson (GA); James Inhofe (OK); Michael Crapo (ID); Charles Grassley (IA); Lindsey Graham (SC); Pat Roberts (KS); John Thune (SD); Mitch McConnell (KY); Lamar Alexander (TN); Bob Corker (TN); John Cornyn (TX); Susan Collins (ME); Orrin Hatch (UT); Michael Enzi (WY).
Republicans Who Missed the Hardiman Vote in 2007 & Are Still in the Senate
Senator John McCain (AZ) was the only Senator to miss the Hardiman vote in 2007 who is still currently in the Senate.
McCain has not weighed in on the Supreme Court nomination process, but FiveThirtyEight did note that it’s possible he could abstain once again from voting for Hardiman, given his current battle with brain cancer. If this were the case, then the vote would go down to 99 Senators and Democrats would only need 49 votes to prevent Hardiman from moving forward.
Republicans Who Were Not in the Senate in 2007
A wave of Republicans are now in the Senate who were not in 2007, including such notable Senators as Ted Cruz, who has been actively speaking out in support of Trump’s short list of nominees for the vacancy.
Though Cruz emphasized that he believed Mike Lee (UT) to be the best candidate for the position, it’s likely that he will cast his support for Hardiman as well if he is the appointeee, given that they align on every major issue. He has also emphasized the need to confirm an appointee prior to the midterms, as seen in the video below.
The full list of Republicans who have entered the Senate after 2007 and are currently sitting are the following:
John Barrasso (WY); Roy Blunt (MO); John Boozman (AR); Shelley Moore Capito (WV); Bill Cassidy (LA); Tom Cotton (AR); Mike Crapo (ID); Ted Cruz (TX); Steve Daines (MT); Joni Ernst (IA); Deb Fischer (NE); Jeff Flake (AZ); Cory Gardner (CO); Dean Heller (NV); John Hoeven (ND); Cindy Hyde-Smith (MS); Ron Johnson (WI); John Kennedy (LA); James Lankford (OK); Jerry Moran (KS); Rand Paul (KY); David Perdue (GA); Rob Portman (OH); James Risch (ID); Mike Rounds (SD); Marco Rubio (FL); Ben Sasse (NE); Tim Scott (SC); Dan Sullivan (AK); Thom Tillis (NC); Patrick Toomey (PA); Roger Wicker (MS); Todd Young (IN).