The U.S. Senate should not act to fill the sudden Supreme Court vacancy opened up by the death of Justice Antonin Scalia until after President Obama departs office, Republican Senate Majority Leader Mitch McConnell said in a statement Saturday.
“The American people should have a voice in the selection of the next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said.
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, as well as current Republican presidential candidates and Sens. Marco Rubio and Ted Cruz, also came out of the gate opposing confirmation of a final Obama Supreme Court nominee.
The Republican majority in the Senate gives the party leverage for a battle with Obama over a new Supreme Court nomination. Any nominee would need 60 affirmative votes on cloture to proceed to final confirmation, meaning that Obama would be under pressure to choose a more moderate versus liberal justice in order to win the at least 14 Republicans he would need to support his nominee. Previous Senate majorities have given presidents of the opposite parties a list of preferred nominees and influenced selections by indicating whom they would confirm.
But that pressure would vanish if Republicans cannot retake the White House in 2016 or hold their majority in the Senate. Many Republicans in D.C. are skeptical that the party will be able to do either, especially if Donald J. Trump or Ted Cruz win the GOP presidential nomination. These establishment Republicans have seen evidence that Trump or Cruz would create a drag on races lower down the ballot, such as the Senate races in November, and are worried Republicans could lose the Senate.
Republicans currently hold the Senate majority with 54 members, but 24 of those seats are being contested this year — including seven in states where Obama won twice.
If Republicans wait and Democrats win the White House and regain the Senate majority, a hypothetical President Hillary Clinton, for example, would have greater leeway to select a more liberal justice than Obama might have submitted.
But the politics could also work in Republicans’ favor, as mobilization for a Supreme Court nomination by a Republican president could cause conservative voter turnout to spike in 2016, helping candidates across the board. Democrats, of course, would similarly seek to boost turnout and support based on the nomination fight (or lack thereof).
There is precedent for the Senate to act in a presidential year on a confirmation. Justice Anthony Kennedy was chosen by Republican President Ronald Reagan and confirmed by a Democratic Senate on February 3, 1988 — also the last year of a lame-duck presidency.
But SCOTUSBlog’s Tom Goldstein does not see a scenario in which Senate Republicans will change their minds.
“Theoretically, that process could conclude before the November election. But realistically, it cannot absent essentially a consensus nominee — and probably not even then, given the stakes,” he wrote. “A Democratic president would replace a leading conservative vote on a closely divided court. The Republican Senate will not permit such a consequential nomination — which would radically shift the balance of ideological power on the court — to go forward.”
Democrats, of course, do not see it that way, but without the Senate majority, there’s little they can do but highlight what they believe is political negligence and then campaign on that. Senate Minority Leader Harry Reid called on Obama to send a nominee to the Senate, and Obama said Saturday night he would, indeed, nominate someone.
The top Democrat on the Senate Judiciary Committee, Patrick Leahy, released a statement mourning Scalia and calling on Republicans to work with Democrats to replace him swiftly because failing to do so would weaken democracy “for partisan reasons.”
“I hope that no one will use this sad news to suggest that the president or the Senate should not perform its constitutional duty,” Leahy said. “The American people deserve to have a fully functioning Supreme Court. The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons. It is only February. The president and the Senate should get to work without delay to nominate, consider and confirm the next justice to serve on the Supreme Court.”