High Court Vacancy Spells Trouble for Congress

High-profile Republicans say the Senate should not consider a nominee to replace the late Antonin Scalia until a new president is sworn in.

Senate Majority Leader Mitch McConnell (center), with Sens. Roger Wicker, Roy Blunt, John Barrasso, John Thune, and John Cornyn.
AP Photo/J. Scott Applewhite
Feb. 13, 2016, 8:04 p.m.

Nobody ever expected Congress to get much done this year. Now conservative Supreme Court Justice Antonin Scalia’s death could unleash a brutal confirmation battle in the GOP-controlled Senate over President Obama’s nominee to replace him.

The fight, which will unfold during a presidential election year, no less, could make it even tougher for the Senate to operate—particularly if Republicans refuse to move an Obama nominee and Democrats retaliate by blocking other legislation.

Within hours of the news of Scalia’s death, a sharp partisan dispute had already arisen over whether Obama should try to replace Scalia at all, with high-profile Republicans warning Obama not to try.

Obama shrugged that off. In remarks Saturday night mostly devoted to praising Scalia and his legacy, Obama also made clear that he will put forward a nominee, and called on the Senate to act.

“I plan to fulfill my constitutional responsibilities to nominate a successor in due time, and there will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote,” Obama said.

But if a Republican wins the White House, a conservative nominee is in the offing, so Senate Republicans have incentive to thwart any effort by Obama to pick the next justice for life.

That’s especially true because Obama will be seeking to replace one of the Court’s most conservative jurists.

“The American people‎ should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” Senate Majority Leader Mitch McConnell said.

Senate Judiciary Committee Chairman Chuck Grassley, whose panel would vet any White House pick, made immediately clear that he’s in no mood to move a nomination from Obama.

“Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people, who will elect a new president to select the next Supreme Court justice,” Grassley said.

But Democrats, just as quickly, warned Republicans against obstructing a White House nominee this year. Senate Minority Leader Harry Reid said the Senate has a responsibility to act as soon as possible.

“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities,” Reid said.

Reid’s office noted that in 1988, the last year of the Reagan administration, a Democrat-controlled Senate confirmed Justice Anthony Kennedy.

But that came a year after lawmakers rejected the nomination of Robert Bork, which is the last time the Senate has voted down a Supreme Court nominee.

Sen. Patrick Leahy, the top Democrat on the Judiciary Committee, fired a shot across Republicans’ bow. “I hope that no one will use this sad news to suggest that the president or the Senate should not perform its constitutional duty. The American people deserve to have a fully functioning Supreme Court,” Leahy said.

Those fault lines were quickly reflected in the White House race.

Sen. Ted Cruz, who is among the front-runners for the GOP nod, and Sen. Marco Rubio both said a replacement nominee for Scalia should come from the next president.

“We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement,” Cruz said via Twitter.

But on the Democratic side, Hillary Clinton said that Republicans calling for the seat to stay vacant until the next presidency “dishonor our Constitution.

“The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons,” Clinton said in a statement.

Princeton University professor of history and public affairs Julian Zelizer said Republicans might find a political upside to having confirmation hearings and a “contentious” vote this year—as long as the nominee is close enough to the political center that the GOP could accept the possibility that she or he might actually be confirmed.

“Overall, though, Republicans will feel this is a debate that can rally the party,” said Zelizer.

ClearView Energy Partners, a consulting and research firm that tracks Congress closely, said Republicans have no reason to play ball on a nominee at least until the outcome of the presidential and congressional elections is known.

The company, in a short note, also predicted that the issue could hinder efforts to compromise on other topics, such as energy legislation.

“President Obama could put forth a middle-of-the-road nominee, but GOP Senate leaders would have little strategic incentive to consider that nominee until they know (a) whether a Republican will succeed President Obama; and (b) whether they will retain control of the upper chamber. Senate Democrats, for their part, would probably not choose to cooperate with Republicans on otherwise-consensus issues … if they believe the GOP is stalling the nomination,” ClearView said.

There’s immediate chatter about what type of candidate Obama might seek, including speculation that it could be someone whom the Senate has already confirmed to another position.

One name batted around Saturday was Sri Srinivasan, who the Senate voted 97-0 to confirm to a seat on the U.S. Court of Appeals for the District of Columbia Circuit in 2013.

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