Senate Democrats have few cards to play in the battle over the Supreme Court now that Republicans have flatly ruled out even considering President Obama’s choice to replace the late Justice Antonin Scalia.
Democrats are slamming the decision and framing their message largely around charges of GOP obstruction as they try to get Republicans to back down—and pay a political price for thwarting Obama.
The partisan showdown over the high court moved into a new phase Tuesday.
Republicans on the Judiciary Committee and Majority Leader Mitch McConnell, after a closed-door meeting, definitively said they would not convene a hearing on a nominee. McConnell said he saw no reason to even meet with Obama’s upcoming pick.
The unified refrain from Senate Democrats on Tuesday in response to the GOP strategy was that the Senate should “do its job.”
“I am really shocked. I didn’t think Republicans would ever go this far. All I can say is: America, stand up; tell this Senate to do its job,” Sen. Dianne Feinstein told reporters after Democrats met privately in the Capitol.
But the coordinated attack against GOP obstruction means it would be politically tough for Democrats to retaliate by throwing wrenches into the gears of the Senate themselves.
It’s something that lawmakers said they’re not planning (although Minority Whip Dick Durbin told reporters somewhat cryptically that the GOP position makes it “difficult for ordinary business”).
"I'm not going to turn into the Obstruct Caucus," Minority Leader Harry Reid said. "We're going to do our work. We have a lot of work to do, and we're going to proceed.”
“My hope is we will continue to get things done; that is what the American people want," said Democratic Sen. Richard Blumenthal. "We should be moving forward on criminal-justice reform, on opiate and heroin addiction, on military aid for our allies in the Middle East, on resolutions of support for the war against ISIS, but this will continue to be an issue."
Also, Democrats have long blamed Republicans for Senate dysfunction, so the “obstruction” charge is hardly a new one coming from Democrats, even though the GOP is in uncharted waters with its decision to deny any consideration of a high-court nominee.
In addition, Republicans have few legislative priorities this year that Democrats could derail even if they wanted to. McConnell’s main goal is simply to move appropriations bills.
Reid himself noted: “Someone asked me also in Nevada—they said, 'Are you going to shut down the Senate?' There's nothing to shut down. We're not doing anything anyway.”
Democrats are also constrained because Republicans are in a very different place politically. There’s little reason for them to act instead of waiting to see if a Republican wins the White House.
Democrats hope to change the GOP calculus with an aggressive messaging war. But the lack of official next steps—including hearings—means that it will be harder for Democrats to keep this issue in the public spotlight, especially with the pending election sucking up an increasing amount of political oxygen.
And it remains to be seen whether Democrats can make the Supreme Court into a salient issue in close Senate races, even as Reid said Tuesday that pressure on McConnell to reverse course will “build in all facets of the political constituency in the country.”
This week a Pew Research Center poll found that 56 percent of Americans agree that there should be hearings and a vote on Obama’s nominee, while a Fox News poll similarly showed 62 percent want Obama and the Senate to “take action to fill the vacancy now.”
Durbin called the Fox finding a “good starting point.” However, neither poll probed how the public ranks the issue in contrast to topics that consistently top surveys, such as the economy, jobs, and terrorism.
Democrats made clear Tuesday that they are going to try and keep the issue front and center politically. Sen. Christopher Coons described the strategy like this: “Talk to the American people through the press, at home and here, remind folks what the historical facts are and what the implications are.”
But that message has been clouded somewhat as Republicans have seized upon comments from 1992 in which then-Sen. Joe Biden, who was Judiciary Committee Chairman, said that if a justice resigned, the president shouldn't name a nominee until after the election is over. It proved to be a hypothetical point because there wasn’t a vacancy that year, but Republicans have been wielding the quote as a cudgel against Democrats.
White House press secretary Josh Earnest responded Tuesday, saying that Biden "ensured" that Anthony Kennedy, a Ronald Reagan nominee, got both a hearing and a “timely” vote during the 1988 election year. Kennedy was confirmed.
One part of the Democratic strategy will be to try breathing life into Obama’s nomination, which Republicans have effectively turned into a zombie. That will include the traditional Capitol Hill meetings between various Democrats and the nominee.
“Every time that nominee comes up to the Capitol, I am going to watch to see if Senator McConnell and Republicans run for cover for fear that they are going to get photographs taken with the nominee that they rejected without even meeting,” Durbin said.
One question is whether Democrats will eventually use a rare procedural tactic, called a discharge motion, to try and force consideration on the floor. It would likely fail to get the needed votes in the GOP-controlled Senate, but would provide another platform for making their case.
A senior Democratic aide would not rule out the idea. “Not going to get into specific tactics that may be used at this point. The first step is bringing the public pressure to bear, and we’ll see where we are after there is a nominee,” the aide said.
Rachel Roubein contributed