Facing a battle over the supreme court seat vacated by Anthony Kennedy, Senate Democrats continued on Thursday to look for ways to fight. They found few options.

Recent changes to Senate rules mean that a simple majority vote is required for a supreme court nominee to advance. Democrats have 49 of 100 seats in that chamber. The absence of John McCain due to ill health means they will need to win over at least one Republican to block any nominee, while holding their caucus together. Neither task will be easy.

Donald Trump’s chosen replacement for Kennedy is likely to shift the balance of the court significantly to the right. The president has long said he will choose from a list of 25 candidates vetted by conservative groups. The list, which features federal appellate judges with sterling résumés, has raised concern among Democrats on ideological grounds. In an interview with MSNBC on Thursday, the Connecticut senator Richard Blumenthal went so far as describe the potential nominees as “rightwing fringe ideologues”.

The two most likely Republican targets to oppose any such nominee are moderates, Susan Collins of Maine and Lisa Murkowski of Alaska. Both support abortion rights and voted against repealing the Affordable Care Act (ACA), popularly known as Obamacare, in 2017. Any conservative replacement for Kennedy would be thought likely to vote to overturn Roe v Wade, the 1973 ruling that guarantees a woman’s right to abortion, and against remaining provisions of the ACA. Among Democratic leadership, Collins and Murkowski are considered potentially gettable.

Senator Chuck Schumer: ‘Our Republican colleagues in the Senate should follow the rule they set in 2016, not to consider a supreme court nominee in an election year.’ Photograph: Chip Somodevilla/Getty Images

Holding the Democratic caucus together, however, will not be easy. On Wednesday, for example, Joe Manchin of West Virginia said in a statement: “I look forward to meeting with and evaluating the qualifications of whoever President Trump nominates to be a justice on the supreme court.”

Manchin was one of three Democrats to vote for Trump’s first supreme court pick, Neil Gorsuch, last year. The others were Joe Donnelly of Indiana and Heidi Heitkamp of North Dakota. All three will be on the ballot in November’s midterm elections, in states Trump won by double digits in 2016.

The changes in Senate rules that set up this fight were themselves the product of bare-knuckle politics. Less than 18 months ago, during the confirmation battle over Gorsuch, the Senate majority leader, Mitch McConnell, ended senators’ ability to block supreme court nominees by filibuster.

Millions of people are months away from determining the senators who should vote to confirm or reject the nominee Chuck Schumer

Previously, a 60-vote super-majority was needed to end debate and advance to a final vote, as is still required for most legislation in the Senate. But the judicial filibuster had already been ended for lower-court nominees. That happened in 2013 under McConnell’s Democratic predecessor, Harry Reid, after Republicans led by McConnell repeatedly blocked nominations from Barack Obama.

In the past, supreme court nominations were comparatively bipartisan affairs. In 1988, Kennedy was confirmed by a 97-0 vote. Since then, the stakes have risen. The first ugly confirmation fight was over Robert Bork, Ronald Reagan’s first choice for the seat Kennedy eventually filled. In 1991, the nomination of Clarence Thomas nomination was marred by scandal. In 2016, Senate Republicans refused to even hold a vote on Merrick Garland, the moderate nominated by Obama after the death of Antonin Scalia.

Republicans justified that refusal by citing the proximity of the presidential election, insisting the seat only be filled by the winner. Some went further. The Texas senator Ted Cruz suggested to reporters that if Hillary Clinton won the White House, any nominee could be blocked indefinitely.

Embittered, Democrats claimed Republicans were trying to steal a seat. They have returned to the issue this week, insisting that the seat was indeed stolen and suggesting that by Republicans’ own example, any vote on Trump’s second pick should wait until after the midterm elections.

On the Senate floor on Wednesday, the minority leader, Chuck Schumer, said: “Our Republican colleagues in the Senate should follow the rule they set in 2016, not to consider a supreme court nominee in an election year.”

He added: “Senator McConnell would tell anyone who listened [in 2016] that the Senate had the right to advise and consent, and that was every bit as important as the president’s right to nominate.

“Millions of people are just months away from determining the senators who should vote to confirm or reject the president’s nominee, and their voices deserve to be heard now, as Leader McConnell thought they deserved to be heard then.

“Anything but that would be the absolute height of hypocrisy.”

Most Democrats in the Senate took the same stand, including potential 2020 candidates Cory Booker of New Jersey, Kirsten Gillibrand of New York and Kamala Harris of California.

Republicans, however, seem ready to move. Michael Ahrens, a spokesman for the Republican National Committee, accused Democrats of “desperately trying to set a new standard as a political play to their base”. The party “must consider a nominee without delay”, he said.

In an interview with Fox News, Senator Mike Lee of Utah said McConnell’s concerns about nominating a justice before an election applied only to presidential years.

Lee is himself a possible nominee, named on Trump’s list. Stating a stark political fact, he added: “We have the majority and they don’t.



“That’s the biggest single distinction. That’s the one that matters. So they can wish that all they want, but they know that we’re going to confirm whoever President Trump happens to nominate.”