Democrats' Hopeful Supreme Court Strategy

For now the minority is banking on public pressure to convince the GOP to relent on moving a replacement for Antonin Scalia.

Senate Judiciary Committee Chairman Chuck Grassley
AP Photo/J. Scott Applewhite
Feb. 16, 2016, 8 p.m.

Hoping against hope, Democrats argued Tuesday that Senate Republicans will hold a vote on President Obama’s eventual pick to replace Justice Antonin Scalia in the face of massive public pressure.

Though many Republicans have joined Senate Majority Leader Mitch McConnell’s call to fill the vacancy only after America chooses its next president in November, Democrats pointed to interviews with two Judiciary Committee Republicans—Chairman Chuck Grassley and freshman Thom Tillis—as evidence that the GOP-controlled Senate will consider a nominee this year.

Grassley said that he would “wait until the nominee is made” before deciding on whether to hold a hearing, while Tillis warned his fellow Republicans against falling "into the trap of being obstructionists” by blocking the nominee “sight unseen.” Democrats pounced on the remarks, even as Grassley reiterated that the next president should fill the spot and Tillis added that that outcome is the most likely.

“Senator McConnell’s rash and unprecedented decision to deny a Supreme Court nominee a fair hearing and floor vote has put Republicans in an untenable position, so it is not surprising to see cracks appear so quickly,” said Adam Jentleson, a senior staffer for Senate Minority Leader Harry Reid. “The next step in this process will be for Senator McConnell to back down and give President Obama’s nominee a hearing and a floor vote. That’s a simple reality.”

For now, Senate Democrats are confident that public pressure will force Republicans to consider Obama’s nominee, and they do not have any plans to use retaliatory legislative or floor maneuvers to persuade Republicans to change their minds, according to senior aides—although one told National Journal that, after some time, Democrats “could drag things to a pretty solid standstill” should outside influences fail.

There is no apparent precedent for the Senate to simply refuse to even hear from a Supreme Court nominee—in an election year or otherwise. Failed nominees like Robert Bork and Abe Fortas were defeated after appearing before the Judiciary Committee. Hearings were even scheduled in 2005 for Harriet Miers, whose nomination was so unpopular on Capitol Hill that President George W. Bush decided to withdraw it before public hearings could begin.

“To preemptively block the important public process of a Senate Judiciary Committee hearing and a transparent debate about a particular nominee’s record would be a travesty,” Sen. Patrick Leahy, the top Democrat on the Judiciary Committee, wrote in a USA Today op-ed.

Yet there’s little evidence that Senate Republicans will actually back down. Several senators in tough reelection contests have come out in recent days to join their leadership. Sen. Ted Cruz has promised to filibuster the eventual nomination during his presidential run. Sen. Lindsey Graham, who supported both of Obama’s previous two nominees, has called the president’s chances of success "very small," while criticizing Democrats for having unilaterally changed the filibuster rules in 2013 to allow a simple majority to confirm most appellate judges and executive appointments.

Holding a hearing might help Republicans avoid charges of blind obstructionism; they could argue that they gave Obama’s nominee a chance, while using the hearings to find a reason to ultimately vote against the nominee, either in committee or on the floor. Obama then still wouldn’t get to fill Scalia’s seat, and Republicans could make a better case that the nominee—rather than election-year politics—was the reason.

But that only works if Republicans can find a persuasive reason to oppose Obama’s pick. A hearing would at least theoretically open the door for a skilled nominee to make it all the way to the floor. It might be easier to simply refuse to hear from a candidate like D.C. Circuit Court Judge Sri Srinivasan—who was confirmed unanimously just two years ago and would likely handle himself well during the confirmation hearings—than it would be to make a case against him on his merits.

“There is more than enough time for the Senate to consider, in a thoughtful way, the record of a nominee that I present, and to make a decision,” Obama said Tuesday.

The Senate has taken an average of 67 days to hold a final vote on Supreme Court nominees, according to the Congressional Research Service. Robert Bork’s failed nomination was the longest the process has taken in the past 40 years, at 108 days.

There are 337 days left in Obama’s presidency.

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