Conservatives have also highlighted a 2007 speech by Senator Charles Schumer of New York, the Democratic leader-in-waiting, who urged his party to block any potential Supreme Court nomination by George W. Bush in the final 18 months of his term. Schumer replied Tuesday in a post on Medium, writing that Republicans were “comparing apples to oranges” and that he was merely suggesting that Democrats “entertain voting no if the nominee [was] out of the mainstream.” He was not calling, he said, for Democrats to reject a Bush choice out of hand without a hearing or a vote.
Obama also faced a question Tuesday about his vote as a senator to sustain a filibuster against Samuel Alito’s nomination to the high court in 2005. The president dodged the question and suggested that he, too, was voting politically; he noted that senators often vote to appease constituencies or for other “strategic reasons,” but he didn’t directly say whether that was his reason for opposing the conservative Alito.
McConnell hasn’t explicitly ruled out allowing Obama’s nominee a hearing or even a vote; his only public statement since Scalia’s death said simply that “this vacancy should not be filled until we have a new president.” Conservative activists are already mobilizing before Obama makes his pick, however, and they are concerned that GOP opposition will soften if the nominee is obviously qualified, potentially historic, or both. In the days since McConnell made his statement, Republican Senators Rob Portman of Ohio, Kelly Ayotte of New Hampshire, Ron Johnson of Wisconsin, and Pat Toomey of Pennsylvania have all backed him up and said Scalia’s replacement should wait until a new president takes office. All four are facing tough reelection battles this year.
Two other centrist Republicans, Senators Mark Kirk of Illinois and Susan Collins of Maine, issued more equivocal statements on a possible nomination. “In the past we’ve had a problem with certain Republican senators who are a little too eager to seem bipartisan right after a nominee is announced,” said Curt Levey, who as the former president of the Committee for Justice has been battling Supreme Court nominations for more than a decade. The group is now affiliated with FreedomWorks, and they are urging Republican senators to “keep their powder dry” when Obama makes his pick. “Don’t say anything,” he said Tuesday morning, summarizing his advice on a conference call with reporters. “When the time comes to have a vote or not have a vote, fine, but do not at this point talk about how you want to ‘work with the president’ and [say] ‘isn’t it wonderful that we have the first, you know, disabled female black nominee.’”
The political strategy from conservatives is to argue against the nomination on process, not substance. Levey said Obama and the Senate “each have a constitutional role here. If the Senate decides that it doesn’t want to act, that’s as much within its constitutional role as Obama naming a nominee.” That decision could have ramifications in 2017 if a Democrat wins the presidency. A nominee who gets roughed up by Republicans now could be eliminated as a possible choice by Hillary Clinton or Bernie Sanders, who might not want to begin their terms with a difficult confirmation battle. But if conservatives stick to the procedural argument, then whoever Obama picks might become the frontrunner next year, almost a second running-mate for the Democratic nominee. And it could get more complicated still: Should Democrats win the Senate, Clinton or Sanders would be tempted to pick an even more liberal nominee, consigning Obama’s doomed selection to a footnote in history.
All of which will likely make an awkward few months for whoever the president picks. “It’s an honor just to be nominated” might be an Oscar-season cliché. But this year it might sound most genuine coming from a distinguished federal judge.