Democrats Vow SCOTUS War, But Face Limited Options

Republicans have ruled out considering President Obama’s nominee. Can Democrats fight back?

Senate Minority Leader Harry Reid discusses the Supreme Court battle at a news conference on Tuesday.
AP Photo/J. Scott Applewhite
Ben Geman and Alex Rogers
Add to Briefcase
Ben Geman Alex Rogers
Feb. 23, 2016, 8 p.m.

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

What We're Following See More »
Manafort Case Moves to Closing Arguments
20 hours ago
Manafort Defense Rests
1 days ago
Judge Holds Witness in Contempt in Manafort Case
5 days ago

"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."

Gates Says He Committed Crimes with Manafort
1 weeks ago

Paul Manafort's former business partner Rick Gates said in court today that "he conspired with Manafort to falsify Manafort’s tax returns. Gates said he and Manafort knowingly failed to report foreign bank accounts and had failed to register Manafort as a foreign agent."

Gates to Be Called Next in Manafort Case
1 weeks ago

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.