President Obama, don’t even bother.
That was the clear message from Senate Republicans on Tuesday as they decided to formally ignore any nominee the president appoints to replace the late Justice Antonin Scalia on the Supreme Court. GOP members of the Senate Judiciary Committee—the panel responsible for vetting court picks—emerged from a private meeting Tuesday afternoon and declared there was a “consensus view” among them not to grant an Obama nominee a hearing, much less a vote, before the presidential election. The committee members then sent a letter to Majority Leader Mitch McConnell putting their decision in writing.
“The election is well underway, so I believe the overwhelming view of the Republican conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame-duck president,” McConnell told reporters Tuesday afternoon. McConnell’s second-in-command, Senator John Cornyn, said members of the Judiciary Committee were “unanimous” in their view that there should no hearing for Obama's nominee. “The reason for that is, it’s not about the personality, it’s about the principle,” Cornyn said. Taking matters a step further, both McConnell and Cornyn said they were not inclined even to meet with the person Obama picks—a traditional first step in any nomination process.
The announcement was not a surprise: Since the first hours after Scalia’s death, Republican leaders had signaled that his seat should be filled by the next president, and not Obama. But they had not firmly decided exactly how they would obstruct the president’s nominee. Would they hold hearings, even a floor vote, before rejecting the appointment? Or would they ignore the nominee altogether rather than risk giving an otherwise qualified person an opportunity to make their case in public? On Tuesday, they confirmed they would follow the advice of conservative activists, who are urging senators to avoid any discussion of the merits of Obama’s choice and stick to the principle that because the presidential campaign is already underway, the public should decide who gets to replace Scalia on the court.
“Presidents have a right to nominate just as the Senate has its constitutional right to provide or withhold consent,” McConnell said in a floor speech before the Judiciary Committee Republicans met on Tuesday. “In this case, the Senate will withhold it.”
Over the last week, senators from both parties have been digging deep into the archives to unearth statements that paint their opponents as hypocritical in this high-stakes debate over the Senate's role in confirming, or rejecting, presidential nominees. The latest goodie emerged on Monday, when Republicans seized on a speech delivered by then-Senator Joseph Biden in June 1992, when he urged Democrats to consider ignoring a nomination by President George H. W. Bush in the middle of his reelection bid. The possibility was entirely hypothetical, as there were no vacancies on the high court that year. But McConnell and other Republicans quoted heavily from the speech as they made their arguments this week.
Opinions on the matter within the Republican caucus are not unanimous. In recent days, centrist Senators Mark Kirk of Illinois and Susan Collins of Maine have called on their party to consider an Obama nominee just as they would in any other year. But they aren’t the voices that count. Those belong to McConnell, and to a lesser extent, to Judiciary Chairman Charles Grassley of Iowa and the Republicans on his committee. And they made their decision clear on Tuesday.
Republicans know they can’t stop Obama from nominating someone and heavily promoting that person in public. But by announcing their strategy before he does, they might have some hope of influencing whomever might be offered the job. Democrats sense a political advantage either way: Assuming Obama advances a popular nominee, Democrats will either try to leverage public opinion and get Republicans to buckle (unlikely), or they take the consolation prize of making them look unreasonable and obstructionist by denying a qualified potential justice so much as a hearing. Republicans hope that by telegraphing their strategy so clearly ahead of time, the most qualified potential nominees will turn Obama down and make him choose someone who has a harder time capturing broad public support.
The scheming on both sides obscures what this fight is really about: Republicans can’t abide allowing Obama to shift the ideological balance on the court for a generation when there’s a possibility a Republican president will replace him next year. And on Tuesday they confirmed that any short-term political pain they suffer for blocking the president is a trade they’re eager to make.