Will Senate Republicans hold firm to a vow by Sen. Mitch McConnell to block any consideration of a Supreme Court nominee to replace the late Justice Antonin Scalia until President Obama leaves office?
The GOP is showing signs of division on the issue.
Sen. Chuck Grassley, R-Iowa – chairman of the Senate Judiciary Committee, which holds the hearings for Supreme Court nominees – told Radio Iowa Tuesday he isn’t ready to make that commitment.
“I would wait until the nominee is made before I would make any decisions,” he said. “In other words, take it a step at a time.”
But Grassley said he doesn’t plan to confirm any pick by Obama.
“This is a very serious position to fill, and it should be filled and debated during the campaign and filled by either Hillary Clinton, Senator Sanders or whoever’s nominated by the Republicans, and [they should] make this decision a very important part of the election coming up,” he said.
Listen to Grassley’s statements (about 2-minute mark):
Other Republican senators have indicated they are open to hearings.
Howell began by telling Johnson: “I think that you should go through the process. If you don’t, I think the party winds up looking like obstructionists.”
Johnson replied: “Well, John, we might. I have no idea how the process plays out. Again, What I’ve heard Leader McConnell say — and maybe he said something else — is let’s, in the end, let the American people decide. So, if President Obama appoints a Justice Scalia clone, my guess is we confirm a Justice Scalia clone. That’s not gonna happen. We already know the type of justices he put on the court. And so I doubt a liberal activist justice judge would be confirmed by the Senate.
“And if we choose to not to confirm, either by not acting or by voting that choice down, either way it’s an action. It’s not giving consent to his nominee. And again, the advice is, let the American people decide the direction of this country. I think it’s a very reasonable position.”
Howell argued that Republicans will look “like petulant children” if they don’t put an Obama nomination up for a vote.
Johnson responded: “So put it up for a vote and vote an individual down. I don’t think there’s much of a difference one way or another.”
In another interview, he said: “I’ve never said that I wouldn’t vote, or that we shouldn’t vote. I have no idea how the process plays out, I’m not in control of it. I’m not the majority leader, I’m not chairman of the Judiciary. By the time I would actually take the vote, if it comes to that, I’ll take a vote.”
‘McConnell will back down. That’s a simple reality’
Appearing on “The Tyler Cralle Show” Tuesday, Tillis said, “I think we fall into the trap … of being obstructionists” if Republicans reject any nominee “sight unseen.”
And while Paul said Obama “has a conflict of interest” in appointing a justice, he would “look at” an Obama nominee.
“It’s going to be very, very, very difficult to get me to vote for a presidential nomination from this president,” he said. “I will look at it if it comes down, but my threshold for voting for somebody is going to be very, very high.”
Senate Minority Leader Harry Reid’s deputy chief of staff, Adam Jentleson, said Tuesday he believes McConnell will relent.
Jentleson tweeted: “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.”
In a second tweet, he wrote: “Senator McConnell will back down. That’s a simple reality.”
Obama ‘needs to decide how he wants to pressure Republicans’
Henry Gass at the Christian Science Monitor asked rhetorically if there is any way Obama can fill the vacancy left by the death of Scalia.
“Probably not. So he needs to decide how he wants to pressure Republicans.”
Democrats and progressives have been calling for Obama to nominate a replacement for Scalia’s position since the justice’s death was announced Saturday.
Many of their statements appear to presume Senate endorsement of his nominee is an obligation.
But the New York Sun examined the Constitution on that question.
The newspaper explained in detail:
We ran the complete text of the Constitution through a machine the Sun recently acquired that, using the most advanced circuitry, is able to find and count every use of the word “right” in the entire parchment.
Not once in the 15 times the word “right” appears in the Constitution does the word denote something belonging to the president. The fact is that, except insofar as the president is also a citizen, the Constitution advances to him (or her) no rights at all. He has no right to nominate anyone to any court or ambassadorship or military post. What the Constitution assigns to the president is certain duties. That’s why the Constitution uses the word “shall.”
As in the following sentence, where the relevant presidential duties are delineated: “… he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.” This is not a “right” but an obligation, and it’s hard to see how President Obama can dodge sending to the Senate a nominee to fill the vacancy left by the death of Justice Scalia. Mark the distinction. Mr. Obama doesn’t need consent to nominate.
The actual appointment, though, the actual raising up of the nominee to the high bench, this can only be done “by and with the Advice and Consent of the Senate.” Absent that – or a recess of the Senate – the president has no appointment power in respect of the Supreme Court. That power is derivative of the Senate (which is derivative of the States). And there is no timetable or other direction in respect of how or when the Senate must act. So if there is any hijacking being done here it would be of – not by – the Senate.”
NPR reported the White House said it would not make a recess appointment for Scalia’s replacement.
Obama: Senate ‘obstructionist’
Obama, at a news conference, called the Senate “obstructionist” and said anyone who is “fair-minded” could support whomever he nominates.
“There will be time for the Senate to consider a nominee and make a decision,” he said.
He said he will “find somebody with an outstanding legal mind.”
“I’m going to present somebody who indisputably is qualified … for the seat. And any fair-minded person – would say would serve with honor and integrity on the court.”
He charged that Washington’s “venom and rancor” is impeding progress.
He said senators under pressure from voters not to approve his chosen.
And Obama said reporters should not assume he would pick someone who is moderate.
‘Consistent with their responsibilities’
The Senate is in recess now, and White House spokesman Eric Schultz told ABC Obama would wait until Congress comes back.
“At that point, we expect the Senate to consider that nominee, consistent with their responsibilities laid out in the U.S. Constitution,” Schultz said.
Obama was rebuked by the Supreme Court in a case over recess appointments he made.
In the 2014 case, National Labor Relations Board v. Noel Canning, the court struck down Obama’s appointments because the Senate was not actually in recess as Obama had insisted.
Lyle Denniston at SCOTUSblog explained that the ruling clarified the law.
It “made clear that [a recess] has to last more than three days, without saying how much more time must pass with the Senate out of town and doing nothing.”
Further, he added, it “left it largely up to the Senate to decide when it does take a recess, allowing it to avoid the formality of a recess by taking some legislative action, however minor or inconsequential and however few senators actually take part in some action.”
The Christian Science Monitor report noted that Republicans, who are in the majority in the Senate, already have said they will take up the issue of a replacement under whomever is elected president this year.
“Given that the new appointment could tilt the court’s balance of power from conservative to liberal for the first time in decades, there is little reason to think Republicans are bluffing,” the report said.
The court is divided between four mostly conservative voters, four progressives and a swing voter, Justice Anthony Kennedy.
Many conservative organizations would say the court already is tilted progressive, based on its recent decisions on Obamacare, the creation of same-sex “marriage” and other cases. Justices Elena Kagan and Ruth Ginsburg voted to redefine marriage after refusing to recuse themselves when their advocacy for same-sex marriage was formally brought to the attention of the court.
So what, the Monitor report asked, could Obama do?
“He can’t force the Senate to vote … but he can use Republican inaction to generate public pressure,” the paper said.
“Or, Obama can make a statement. He could put pressure on Republicans by choosing a lower court judge who has already survived a rigorous vetting process. Or he could put pressure on them by reaching out a hand in the form of a political acceptable candidate.”
USA Today presented 10 nominees Obama could consider: Sri Srinivasan, Patricia Millett, Merrick Garland, Kalama Harris, Jacqueline Nguyen, Amy Klobuchar, Sheldon Whitehouse, Cory Booker, Paul Watford and Jane Kelly.
Watford is on the notoriously progressive 9th U.S. Circuit Court of Appeals, Harris has fought for far-left causes as an official in California and Klobuchar has supported progressive legislation in Congress.
The Sun took a shot at the Financial Times newspaper, noting: “The president could find a confirmable nominee if he wanted to. The real problem is that the president doesn’t want to. He wants to put the Senate on the spot, he courts a confrontation. The reason the Financial Times can’t quite figure this out may be that, even though it’s a Japanese owned newspaper, it’s headquartered in Londonk, where traditionally these types of appeals are brought to the king- or queen-in-Parliament. Then again, too, that is one of the reasons the 13 original American states decided they would not be subverted in the first place.”
Colorado Senate President Bill Cadman, a Republican, believes both the president and Senate have jobs to do, and they should do them.
“My comment that ‘both sides have a job to do’ simply meant that the Senate’s job of confirming a nominee, through its powers of advice and consent, is equal in importance to the president’s job of nominating someone,” he said. “If a majority of senators choose to reject a nominee, or delay confirmation until after President Obama leaves office, they are perfectly within their rights, in my opinion, and doing the ‘job’ the Constitution assigns them.”
Sen. Chuck Grassley, R-Iowa, the chairman of the Senate Judiciary Committee, said the nomination is so significant to the nation that the voters need to be heard in 2016.
Doesn’t really matter
Constitutional attorney John Whitehead of the Rutherford Institute said it really doesn’t matter who gets named.
“They [nominees] will all look alike (in terms of their educational and professional background) and sound alike (they are primarily advocates for the government),” he said. “While what the nation needs is a constitutionalist, what we will get is a technician. It’s an important distinction. A legal constitutionalist believes that the authority of government derives from and is limited by a body of fundamental law (the Constitution) and strives to hold the government accountable to abiding by the Constitution. … A legal technician, on the other hand, is an arbitrator of the governments’ plethora of laws whose priority is maintain order and preserving government power.”
He pointed out that Srinivasan, asked to strike “down a 60-year-old ban on expressive activities in front of the Supreme Court Plaza, … turned a blind eye to the First Amendment.”
The judge found, “Allowing demonstrations directed at the court, on the court’s own front terrace, would tend to yield the opposite impression: that of a court engaged with – and potentially vulnerable to – outside entreaties by the public.”
Whitehead said, “Members of the Supreme Court are part of a ruling aristocracy composed of men and women who primarily come from privileged backgrounds and who have a vested interest in maintaining the status quo.”
‘The prerogative to confirm or deny’
The Washington Examiner reported Sen. Chuck Schumer, D-N.Y., told the American Constitution Society in 2007 that the Senate, facing a possible nomination from Republican President George W. Bush, should “reverse the presumption of confirmation.”
Now, he is saying that statement, under the current circumstances, is an “apples to oranges” comparison.
The Examiner cited a precedent, however, for rejecting Obama’s nominee.
“The Constitution clearly gives the president the duty of appointing a justice and it clearly gives the Senate the prerogative to confirm or deny confirmation to that nominee,” the paper said.
It explained: “If you want a clear precedent for election-year nomination and confirmation, you have to go back 100 years ago, to 1916, when Woodrow Wilson nominated Louis Brandeis in January and John Clarke in July. Brandeis was approved in June after a confirmation fight and Clarke was routinely confirmed in July. By the way, Brandeis’ nomination prompted the first Judiciary Committee hearing on a nominee in history. Hearings are not mandatory and Obama’s nominee need not get one.”
It reported that the last three times a justice was nominated and confirmed in a presidential year were in 1956, 1940 and 1932.
“In 1956 and 1932, Republican presidents named a Democratic nominee who served on their state’s highest courts: Dwight Eisenhower chose William Brennan (whose selection he later called one of his biggest mistakes) and Herbert Hoover chose Benjamin Cardozo. In 1940 a Democratic president named a Democratic nominee, Attorney General Frank Murphy, who was nominated on January 4 and confirmed by a Democratic-majority Senate 12 days later. If you want to take this as a precedent for consideration and confirmation of a nominee in an election year, note that it is 76 years old.”
The Wall Street Journal said Republicans should wait and are “right to say that the Senate should refuse to consider any nominee this year.”
“[P]rogressives have made the court so political that it’s understandable that Republicans want to let the next president fill Justice Scalia’s vacancy,” said the Journal. “A GOP senator who voted to confirm an Obama nominee would demoralize his own supporters. Meanwhile, the outrage among Democrats over being denied a vote is entirely synthetic as they use the issue to mobilize their own partisans.”