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
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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.

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