It was a sure bet that Democrats and Republicans on Capital Hill would bicker furiously over President Barack Obama’s anticipated Supreme Court nominee to replace the late Justice Antonin Scalia. Both sides know the stakes could not be higher in this election year, as political heavyweights on both sides of the isle are not only sounding off about what type of judicial ideology is desirable but, increasingly, what type of jurist is most acceptable to the base of either party.
Within hours of Scalia’s death, Senate Majority Leader Mitch McConnell (R-Ky) said he would not consider any nominee so late in Obama’s presidency. The American people, he said, should “… have a voice in the selection of their next Supreme Court Justice.” The GOP-lead Senate would prefer the vacancy be filled when there is a new president. Obama said he is bound by the Constitution to swiftly place a nominee into consideration to allow the highest court in the land its full complement of jurists. With most recent Supreme Court of the United States (SCOTUS) decisions coming down to a five-to-four vote, the present numerical tie of four each means that there is no longer a “swing vote” for the many cases heard that have, increasingly, been decided by strictly liberal or conservative leanings. Such inevitable deadlocks only mean that a particular case will revert back to the lower-court decision.
‘Gigantic game changer’
Late last week, Vice President Joe Biden said Obama should put forth a relatively non-ideological nominee, possibly someone in the mold of Justice Anthony Kennedy or retired Justice David Souter, as opposed to a liberal icon in the footsteps of former Justice William Brennan. News reports say that apparently, when the process of replacing a justice could swing the ideological balance on the court, the nominees who often win confirmation tend to be more neutral. With Scalia’s death, the court has lost its most conservative/constitutional justice and based on comments proffered since Feb. 13, practically no Republican in Congress—or those on the presidential campaign trail—want to see a liberal democratic administration nominate a successor.
“This is a potential gigantic game changer,” Biden said in reference to the potential philosophical composition of the court. “My advice is, the only way we get someone on the court—now or even later—is to do what we’ve done in the past and that is to pick somebody who is intellectually competent, someone of high moral character, [someone] with an open mind, and a person who doesn’t come with a specific agenda.”
In a 1992 floor speech in the Senate, Biden argued that if there were to be a SCOTUS vacancy in the last year of a presidential term, it should not be filled until after that year’s election.
This week, McConnell went against a long-standing custom of meeting with a SCOTUS nominee prior to the Senate Judiciary Committee hearing. He said that since members of the committee unanimously recommended that there should not be a confirmation hearing this year, he saw no need in greeting the nominee because “… he or she won’t be considered.”
“The overwhelming view of the Republican conference in the Senate is this vacancy should not be filled by this lame-duck president,” McConnell said.
Cracks in GOP stance?
McConnell’s words were echoed by Sen. Lindsay Graham (R-S.C.) and by Senate Republican Whip John Cornyn of Texas, each of whom stated that there is a “consensus” among the Republicans in both the House and Senate that there should be no vote on Obama’s nominee.
Judiciary Committee Chairman Chuck Grassley (R-Iowa) back tracked on comments he made about a potential hearing, having said earlier that he would “not rule out” a committee hearing. Now he is adamantly against a hearing. However, Grassley was joined last week by Sen. Susan Collins (R-Maine), Lisa Murkowski of Alaska and Dean Heller of Nevada, who each indicated that the nominee should at least get a fair hearing. “The chances of approving a new nominee are slim, but Nevadans should have a voice in the process,” Heller said. Sen. Tom Tillis of North Carolina went a bit further, noting that if the GOP simply says no sight unseen, “… we fall into the trap of being obstructionist.” Then there’s Sen. Mark Kirk of Illinois—perhaps the GOP’s must vulnerable sitting senator—who said this week he fully expects and “looks forward” to working with Obama on advancing a nominee for the Senate to consider.
Kirk is facing a tough re-election in a state that leans Democratic and has several Democrats vying to replace him. He’s also facing increased pressure from conservatives to obstruct a potential nominee from Obama.
Most of the “at-risk” GOP senators up for reelection have supported McConnell’s decision, particularly since the party will have a considerable fight on its hands to retain control of the chamber after 2016. Democrats only have to defend 10 seats in November, whereas the GOP must protect 24 seats—six of them in states that Obama won twice.
Tough sledding for Democrats
Democrats don’t have a lot of leverage on the matter. Republicans still control the Senate, and Obama would need to get the vote of every single Democratic senator and 14 Republicans to get his nominee through. To that end, Sen. Harry Reid (D-Nevada) is supporting the president’s position that a year-long delay in approving a nominee will ultimately hurt Republicans much more than Democrats. Reid said he expects the GOP to eventually capitulate and that McConnell made a mistake with his initial comments.
“I think they’re going to cave in,” Reid said. “I think the president is going to give us a nominee that’s a good one, and I think they’re going to have to hold hearing and have a vote.”
Today’s political climate may make Biden’s suggestion almost impossible to follow through on. As the political debate—whether in the nation’s capital, in the statehouse or at downtown city hall—becomes increasingly divided between liberal and conservative, it may be a tall order for Obama to showcase a nominee who is appealing to both sides. There are a number of candidates of whom the White House believes are a logical choice for consideration, many of which have been confirmed by the GOP-led Senate to appellate court positions such Sri Srinivasan (District of Columbia), Paul Wartford (Ninth Circuit), Jane Kelly (Eighth Circuit) and Jacqueline Nguyen (Ninth Circuit). Some of these persons appear on Obama’s list of potential nominees, while some others may surprise people such as Utah Sen. Orin Hatch whom Graham remarked could be a good “consensus pick.”
American voters equally divided
American voters are divided along party lines as to whether the Senate should vote this year on a nominee. The results of an NBC News/Wall Street Journal poll taken on Feb. 16 found 43 percent of respondents saying “yes” to a Senate vote, versus 42 percent who prefer to leave the position vacant and to wait for a nomination by the new president. Fifteen percent had no opinion. Among Democratic voters, 81 percent want the Senate to vote this year, with only 9 percent disagreeing. The numbers are flipped almost exactly among Republicans respondents with 81 percent preferring the position remain vacant, and 11 percent opting for a Senate vote. A CBS News poll revealed similar responses: More than four in five Republicans believe the Supreme Court vacancy should be filled by the next president and as many Democrats, 77 percent, think President Obama should choose Scalia’s successor. The political landscape on both sides of the issue isn’t budging: 47 percent of respondents to the CBS News poll said the president should nominate someone now, while 46 percent declare he should not.
This week, several conservative leaders sent a series of blunt messages to McConnell regarding the next SCOTUS pick. Most of the “hard-right” critics say that the ideological balance of the court is so important that it’s not worth playing political games to take the pressure off vulnerable GOP incumbents up for re-election in November. They believe taking action on a SCOTUS pick—even through the Senate Judiciary Committee—with Obama having less than a year left in office would reportedly be a cardinal sin.
Trading Senate for ‘true’ conservative
“I would rank having a conservative justice as more important than having the majority in the Senate,” said David Bozell, president of For America, a conservative advocacy group. “God knows this Republican majority in the Senate hasn’t done much anyway for conservatism, period.”
Bozell points to two recent SCOUTS decisions—District of Columbia v. Heller, and Citizens United v. FEC—as doing far more to lift restrictions on gun ownership and political spending by outside groups, respectively, than anything the Republican-led Congress has done since coming to power in 2014. After campaigning for about eight years to bolster a defense against Obama’s [perceived] executive overreach, some conservative leaders appear to suggest that losing the Senate may not be such a bad thing—provided a conservative stalwart like Scalia can return to the bench.
“The Senate isn’t as important on a great number of issues as the Supreme Court,” said Mike Farris, chairman of the Home School Legal Defense Association. “The Senate did not determine whether or not we have Second Amendment rights … the Supreme Court did. The Senate did not determine marriage … the Supreme Court did. The Senate did not determine abortion … the Supreme Court did.”
While Conservatives say Republicans should use their congressional majority to defend the ideological composition of the highest court in the land—no matter the cost—there is rising dispute that quashing Obama’s nominee will hurt the GOP’s chance at the White House in November. Many warn that considering a nominee this spring or summer could provoke such a negative reaction from the party’s base that the fallout in November would be much worse.
“What’s the purpose of having a majority unless you use that majority to defend and uphold the Constitution?” asked Tony Perkins, president of the Family Research Council. “This is something the left understands quite well in terms of the purpose of the majority. After all, that’s how we got ObamaCare. The Democrats used their majority to force ObamaCare onto the nation knowing it may cost them their majority.”
Some possible picks
Here is a brief look at Obama’s potential nominees:
Loretta Lynch. The nation’s first female African American attorney general would pose difficulty for Republicans. If they refuse to consider her, their actions could come off as blatantly political, could put off Blacks from the party for decades, and would also alienate women from the GOP. Also, Obama could make the case that the Senate already vetted Lynch and that 10 Republicans voted for her confirmation.
Sri Srinivasan. As the first South Asian American to be on the Supreme Court, Srinivasan’s confirmation would be just as historic as Lynch’s. His record suggests he’s no “tree-hugging” liberal, having defended giant corporations like ExxonMobil against human rights charges, and once defended disgraced Enron chief Jeff Skilling in appealing fraud and conspiracy convictions. Srinivasan clerked for Sandra Day O’Connor, a Ronald Reagan appointee, and he was an assistant solicitor general under George W. Bush.
Elizabeth Warren. The junior senator from Massachusetts can probably rally the Democratic base like no one else, because she is a voice for economic populism and, possibly, may deserve credit for helping to shape the leftward nature of the Democratic party’s two leading presidential candidates. It’s unlikely Obama would nominate a sitting senator (likely scratch Orin Hatch and Minnesota’s Amy Klobuchar), and Warren is known to publicly criticize the president on issues like cuddling up to Wall Street and supporting free trade.
Brian Sandoval. Nevada’s Republican governor has a dynamic background. He’s Latino, a former federal judge and is moderate enough for Democrats to approve. Sandovol supports abortion rights, comprehensive immigration reform, and even took a somewhat moderate stance on whether to allow Syrian refugees into Nevada. However, Sandovol on Thursday indicated he is not interested in the position.
Paul Watford. Another young jurist who, if nominated and confirmed, would be the Court’s third African American man. Now on the Court of Appeals for the Ninth Circuit, Warford is a former law clerk to Justice Ruth Bader Ginsberg and worked as a federal prosecutor before Obama appointed him to the San Francisco-based court. The Senate confirmed him 61-34 in 2012.
Jacqueline Nguyen. Also on the Court of Appeals for the Ninth Circuit, Nguyen would be the first Asian-American on the Court. She emigrated from Vietnam as a child and is a former assistant U.S. attorney.
Jane Kelly. Kelly sits on the Court of Appeals for the Eighth Circuit and was unanimously confirmed in 2013 to the St. Louis-based court. Kelly is a former public defender and, perhaps, her strongest backer within the GOP is fellow Iowan Sen. Chuck Grassley.
Jeh Johnson. The Secretary of Homeland Security is knowledgeable in a number of areas of the law, having served as the Pentagon’s general counsel and as a federal prosecutor. Like Watford, Johnson would be the third Black man to sit on the bench. He has been confirmed by the Senate several times—most recently in 2013 by an overwhelming majority. Because Republicans generally loathe Obama’s executive actions on immigration—orders that Johnson’s department implemented and are currently before the Supreme Court.
Merrick Garland. A graduate of Harvard Law School, Garland is chief judge of the Court of Appeals for the District of Columbia Circuit. He’s considered a moderate and has experience on the D.C. circuit, which handles many cases involving administration actions.
Kamala Harris. A rising star in the Democratic party, Harris is California’s attorney general and is running to replace Barbara Boxer in the U.S. Senate. The former district attorney in San Francisco said earlier this week that she is not interested in the Supreme Court spot, opting to concentrate on her senatorial bid.