We noted earlier that Senate Judiciary Committee Republicans announced today that they will not even consider a nominee for the Supreme Court from President Barack Obama. They will refuse to hold hearings — and it appears from the latest reports, refuse to even meet with the nominee.
It seems to me that once Obama fulfills his constitutional duty to nominate someone, the nominee should just walk the hallways of the U.S. Capitol, forcing Majority Leader Mitch McConnell to stick his fingers in his ears should they pass each other.
Such a clownish pose would fit McConnell, who is now demanding that the president shirk his constitutional duty. McConnell said the following on the Senate floor, the New York Times reports:
This is his moment. He has every right to nominate someone. Even if doing so will inevitably plunge our nation into another bitter and avoidable struggle, that is his right. Even if he never expects that nominee to actually be confirmed but rather to wield as an electoral cudgel, that is his right.
But he has also has the right to make a different choice. He can let the people decide and make this an actual legacy-building moment rather than just another campaign roadshow.
The mind boggles. I get that McConnell has to pretend like there is principle at stake even though everyone knows this is a naked power grab, but come on! Obama is the president of the United States of America and it says right there in the Constitution that the president “shall nominate” justices to the Supreme Court. If will “inevitably plunge our nation” into “bitter and avoidable struggle”? It’s a “cudgel” and a “campaign roadshow” for the president to do his job?
The crux here: McConnell’s position is that Democratic presidents should not nominate anyone to the Supreme Court. What happens if Hillary Clinton or Bernie Sanders wins the presidency? McConnell will likely continue to insist that they’re troublemakers if they fulfill their constitutional duty.
Talking Points Memo reports:
Asked by a reporter at a press conference at the Capitol Tuesday whether he would commit to an up-or-down vote for the next president’s nominee, McConnell said, “No.”
Jonathan Chait at New York gamed out what this might look like:
If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not — maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term, causing federal rulings to pile up and further fracturing the country into liberal and conservative zones with dramatically different constitutional interpretations. On some of the most contentious issues, there would be, effectively, no Supreme Court at all.
If Republicans win the White House and retain the Senate, Democrats would regard Scalia’s vacated seat as rightfully theirs and oppose any nomination. This will cause Republicans to abolish the filibuster altogether; then they will fill the seat, solidifying their control over all three branches of government.
A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly? And given that the Court can affect the outcome of elections directly (like it did in Bush v. Gore) or indirectly (by ruling on the legality of partisan redistricting schemes, laws designed to inhibit voting by marginal constituencies, campaign-finance regulations, or labor’s ability to organize politically), with every election, the stakes will rise and rise.
The Supreme Court is a strange, Oz-like construction. It has no army or democratic mandate. Its legitimacy resides in its aura of being something grander and more trustworthy than a smaller Senate whose members enjoy lifetime appointments. In the new world, where seating a justice is exactly like passing a law, whether the Court can continue to carry out this function is a question nobody can answer with any confidence.
In a new piece today, Chait notes that the current total blockade is without precedent in American history:
Senate Republicans announced today that they would refuse to consider any candidate nominated by President Obama for the Supreme Court. The Constitution gives the Senate the right to offer advice and consent on Court nominees. The two bodies have frequently quarreled over just how much power each is entitled over a nomination. Sometimes, senators have granted presidents wide latitude. At other times, they have insisted on forcing the president to nominate a jurist with mainstream views. But never before in American history has the Senate simply refused to let the president nominate anybody at all simply because it was an election year.
Senate Minority Leader Harry Reid slammed the GOP’s total obstructionist tactics, saying that Sen. Chuck Grassley would go down as the most obstructionist Senate Judiciary Committee chairman in history:
Hard to comprehend but it appears Sen. Grassley’s going to follow through on this plan and go down in history as the most obstructionist Judiciary chair in the history of this country.
That says a lot because we knew about Judiciary Committee chairs during the civil rights era. I can’t imagine that Sen. Grassley, who I’ve served with in Congress for more than three decades — is this the legacy that he wants? …
They’re threatening to abandon the Senate’s responsibilities. It’s what Donald Trump and Ted Cruz want. Remember Trump said, “Delay, delay, delay.”
The Hill reports that not all Republicans are pleased, since McConnell’s shenanigans are unpopular with the public:
Some of them have warned that it would be a mistake to shut down Obama’s pick without a fair review.
“It’s common sense to have hearings and then an up-or-down vote and say why you’re opposing a person,” said Rep. Peter King (R-N.Y.) in an interview. “To just say no [and have] no hearings, no vote. I think that puts us on the defensive. It looks like we’re afraid of something.”
One of the chamber’s most vulnerable Republicans, Sen. Mark Kirk (R-Ill.), wrote in an op-ed Monday that he and his colleagues have “a duty” to review and vote on the nominee.
Sen. Thom Tillis (R-N.C.), a member of the Judiciary Committee, initially warned that his party could “fall into the trap of obstructionists” if it rejects the nominee “sight unseen.”
A Pew Poll released this week found that 56 percent of Americans say the Senate should hold hearings, while only 38 percent say those hearings should wait until 2017.
A Fox News Poll from last week found that 62 percent of respondents said Obama and Senate leaders have a responsibility to take action on the court vacancy now. Thirty-four percent said Obama should not be allowed to choose another justice so late in his presidency.
Brian Beutler at the New Republic suggests that Obama use the total obstruction from GOP lawmakers as an occasion to nominate a series of diverse and qualified judges and let Republicans refuse to speak to all of them:
Having a hard time settling on a Supreme Court nominee, Mr. President? Why not pick three!The elephant in the room for vulnerable Republicans reluctantly drawn into an indiscriminate filibuster of President Obama’s coming Supreme Court nominee is that the fight is likely to have greater reach than a generic confirmation battle. The New York Times, for instance, has reported that black voters sense racial bias in the decision to effectively nullify Obama’s appointment power. That sense will be exacerbated when (as is widely suspected) Obama nominates an ethnic minority to the bench. Among potential nominees with media buzz: Tino Cuellar and Leondra Kruger of the California Supreme Court, and Sri Srinivasan of the D.C. Circuit Court of Appeals.
Cuellar would be the first Mexican-born justice; Kruger the first black female justice; Indian-born Srinivasan the Court’s first justice of Asian descent.
The question of whether these potential nominees would motivate segments of the Democratic voting base is an open and somewhat cynical one. But as far as I know, there’s nothing stopping Obama from sending all three names (and perhaps others) to the Senate, as if to say, “Pick one!” There’s certainly nothing stopping him from nominating one, while leaking his short list to signal that if the Senate rejects a qualified nominee, he will substitute another.
The indiscriminate filibuster threat is political hardball born of weakness: the fear that Democrats might flip the court. The proper strategic response is to target their source of strength (the filibuster) and use it to exacerbate the weakness.