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6/30/2018 4:33:00 PM
COMMENTARY: Supreme Court opening finds Donnelly in the middle again

Kelly Hawes, Herald Bulletin CNHI News Indiana Columnist

Some have suggested the pending opening on the U.S. Supreme Court comes at a bad time for Indiana’s Joe Donnelly.

Donnelly is in the midst of a fierce fight for re-election, and the odds are that whatever vote he casts will come up for criticism. If he votes to reject the president’s nominee, he’ll be cast as a liberal who is out of touch with Indiana voters. If he votes to confirm the nominee, he’ll be a turncoat who let down his party.

The folks making those arguments don’t really know Joe Donnelly.

Donnelly will do what he always does. He’ll vote his conscience and let the chips fall where they may.

“As I’ve said before, I have no litmus tests,” he said this week on a call with reporters.

Donnelly was one of three Democrats who voted to confirm the appointment of Neil Gorsuch to the high court, and he says he won’t hesitate to do it again if he finds the president’s choice to be qualified.

“I voted for Judge Gorsuch because I thought on balance, he was appropriate and a good fit for the Supreme Court,” Donnelly said. “Whoever is nominated and comes forward, we’ll do the same.”

And that’s exactly what Indiana voters have come to expect from their senators. Guys like Richard Lugar and Evan Bayh cast their confirmation votes based not on whether they agreed with the nominee but on whether the nominee was qualified for the office.

Of course, that doesn’t mean there won’t be drama.

Democrats are still licking their wounds from the last Supreme Court opening, where Senate MajorityLeader Mitch McConnell managed to steal an appointment during Barack Obama’s last year in office. McConnell refused to give Obama’s appointee, Merrick Garland, even the courtesy of a hearing, and the move paid off when Donald Trump won the election and Republicans were able to confirm Gorsuch instead.

Senate Minority Leader Chuck Schumer argues it would be the “height of hypocrisy” for the Senate to consider a Trump nominee before this year’s election. McConnell, of course, doesn’t see the correlation.

“This is not 2016,” he said. “These aren’t the final months of a second-term constitutionally lame duck presidency with a presidential election fast approaching. We’re right in the middle of this president’s very first term.”

The stakes are higher this time, perhaps, in that the justice who is leaving, Anthony Kennedy, has been the swing vote on many historic decisions.

He wrote the majority opinion on Obergefell v. Hodges, the 2015 case that effectively legalized same-sex marriage in all 50 states. He also cast the deciding vote to uphold the precedent of Roe v. Wade in the 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey.

That abortion ruling is the one many observers are most concerned about. Odds are, though, that a candidate who voiced support for overturning Roe v. Wade would find it hard to win confirmation even from moderate Republicans.

Democrats say they won’t go down without a fight, but their only real chance is to convince some Republicans to support them in their effort to block the president’s nominee.

Failing that, we’ll likely see a repeat of last year when the Senate confirmed Gorsuch by a vote of 54-45. In that instance, Donnelly joined Democrats Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota in voting yes.

History might well repeat itself.

Donnelly casts himself as a moderate Democrat. That’s the image that got him elected six years ago, and it’s his only shot at getting elected again.

#YYYY# Community Newspaper Holdings, Inc.

Editor, John C. DePrez Jr.; Executive Editor, Carol Rogers; Publishers: IBRC and IAR

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