The Corner

Law & the Courts

Why Would Mitt Romney Vote No?

UPDATE: Romney sides with the Constitution.

It would be quite the historical footnote if Mitt Romney ending up sinking the chance to replacing Ruth Bader Ginsburg with an originalist by embracing a concocted norm and, thereby siding with Joe Biden, who once told voters that Romney was going to put black Americans “back in chains.”

As far as I can tell, Romney never took a position during the Merrick Garland fight. So why would he be tethered to arguments allegedly made by other Republicans when he wasn’t even elected, rather than to the constitutionally prescribed process?

It was one thing for Romney to vote to convict the president; he has held a fairly consistent view that Trump was corrupting the office. But it would be quite another for him to sink the prospects of a Court that sounds almost exactly like the one he promised to appoint when running for president. When CNN compiled a list of potential Supreme Court nominees in 2012, using sources and “informal advisers” to his campaign, both Brett Kavanaugh and Neil Gorsuch were on it. So one must assume that Romney believes that Trump has done a good job with nominees.

As a political matter, Utahans are likely the most Trump-skeptic Republicans in the country. At the same time, they are also probably the most socially conservative constituency in the country. One suspects that they would feel differently than they did over impeachment if one of their representatives were to deny them a Court that will protect religious liberty long after Trump is gone. As Senator Romney said in floor speech explaining why he would vote to convict the president: “The Constitution is at the foundation of our Republic’s success, and we each strive not to lose sight of our promise to defend it.” We’ll know if Romney truly believes this soon enough.