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
Alex Rogers and Sam Baker
Add to Briefcase
Alex Rogers and Sam Baker
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.

What We're Following See More »
WILL ALSO RESUME TRADE TALKS WITH CHINA
Kudlow Says Trade Deal with Mexico Is Close
30 minutes ago
THE DETAILS

White House economic adviser Larry Kudlow said that U.S. Trade Representative Robert Lighthizer is "getting close" to a deal with Mexico. Kudlow added that trade talks with China are set to resume shortly.

Source:
TRADE WAR ESCALATES
Trump: Country Was Built on Tariffs
33 minutes ago
THE LATEST
"A CASE ABOUT LIES"
Manafort Case Moves to Closing Arguments
23 hours ago
THE LATEST
THEY CALLED NO WITNESSES
Manafort Defense Rests
1 days ago
THE LATEST
ANDREW MILLER IS AN AIDE TO ROGER STONE
Judge Holds Witness in Contempt in Manafort Case
5 days ago
THE LATEST

"A federal judge has found a witness in contempt for refusing to testify before the grand jury hearing evidence in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 presidential election. U.S. District Chief Judge Beryl Howell made the ruling Friday after a sealed hearing to discuss Andrew Miller’s refusal to appear before the grand jury. Miller is a former aide to longtime Trump confidant Roger Stone."

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login