The many ways Senate Republicans can block Obama’s Supreme Court nominee
Do Senate Majority Leader Mitch McConnell (R-Ky.) and his Republican caucus have the ability simply to ignore President Barack Obama’s nominee for the seat of Justice Antonin Scalia on the U.S. Supreme Court? The short answer is “yes.”
Though the Constitution imposes an obligation on the president to appoint a justice, and on the Senate to give or withhold its “advice and consent” regarding the nomination, in practice there is nothing Obama can do to overcome a politically driven Senate majority.
There is no constitutional mechanism for forcing the Senate to act. Its failure to do so poses the classic disagreement between the political branches that federal courts leave to the political process for resolution. Because Republicans control the Senate, they could remain in session for the remainder of Obama’s presidency, so a recess appointment would not be possible. The only real check on an obstructionist Senate is the political calculation of its membership.
Within hours of the announcement of Scalia’s death, McConnell, who was immediately joined by a majority of his party, urged the president not to make a nomination and asserted that the Republican-controlled Senate would not consider any nomination that he made. This seemed an astonishing rejection of constitutional order that discredited the memory of Scalia’s strict, originalist interpretation of the Constitution.
Yet, McConnell took to the Senate floor Tuesday to reaffirm his blanket opposition to considering any Obama nominee. In fact, McConnell and Senate Republican leaders announced that not only will they deny an Obama nominee a hearing and a vote, but they will not even meet with the nominee. Republican members of the Judiciary Committee took a similar stance. Only two Republican senators have broken ranks publically — Susan Collins of Maine and Mark Kirk of Illinois, who is facing a difficult election in a blue state.
Bashing Obama in the cause of preserving Scalia’s crucial seat for a Republican nominee fires up the GOP base. McConnell played into the ugly far-right meme that Obama is not a legitimate president. Suggesting that it would be inappropriate for him to nominate a justice was in line with the birther movement, the shout of “You lie” during one of the president’s State of the Union addresses and McConnell’s announced strategy of opposing every Obama initiative to ensure he would be a one-term president.
Republicans argue, absurdly, that a president with nearly a year left in his term is a lame duck. Somehow, members of Congress become lame ducks only after the November election, but Obama is considered a lame duck roughly nine months before the actual vote.
The effort to shut down the process before it begins makes practical sense for Republicans. If they are firmly committed to opposing any nominee on principle, it simply invites political risk to go through an extended process. A hearing would allow the American people, as well as the Senate, to scrutinize the nominee. Pressure could grow on vulnerable Republican incumbents to break with the party line.
Six GOP senators are up for re-election this fall in states that Obama carried in 2012. They could face consequences for opposing a nominee who made a favorable public impression. Given the 60-vote threshold imposed by a filibuster, there is no danger of confirmation — 14 Republicans would have to vote with a unanimous Democratic block to confirm. By staking out a commitment not to act, however, McConnell avoids the possibility of subjecting members of his caucus to a difficult vote.
His move carries some political risk. Democrats have responded with appropriate outrage. There was initially some softening of the Republican position, but it now appears even more unlikely that the nominee will be given a hearing.
When Republicans took control of the Senate in 2015, McConnell vowed to make the upper chamber work again by returning to regular order. He hasn’t. If the Senate were to consider the nomination under regular order, here’s how it would proceed:
The process would begin with the president’s announcement of his choice for the court. The nominee’s name would be transmitted formally to the Senate, where it would be referred to the Senate Judiciary Committee. The nominee, already thoroughly vetted by the White House, would then submit responses to an extensive Judiciary Committee questionnaire that covered early life, education, employment, professional and other memberships, speeches, writings, financial holding and family status.
This part of the process might proceed as usual. But after this step, the nomination would likely fall victim to Senate dysfunction.
Supreme Court confirmation hearings are invariably big and loud. Given the role that Scalia played on the court, the yawning partisan divide in American politics and the prospect that his replacement could shift the court’s ideological balance in major — and politically controversial — areas, the hearing for his successor promises to be the most contested in history.
During the weeks between the nomination and the hearing, committee staffers pour over the nominee’s record in search of pressure points. The Senate Judiciary Committee is the most partisan in the Senate largely because its docket includes such controversial issues as civil rights, civil liberties, abortion, crime, immigration and judges. Republican staffers look for avenues of attack against the nominee of a Democratic president, while Democratic staffers try to anticipate their arguments and develop strategies to block attacks.
During this period, staffers are bombarded by visits from, and submissions by, outside groups, which are expected to spend millions of dollars in an attempt to influence the direction of the hearing and shape public opinion of the nominee.
In the normal course, the nominee appears before the committee with great fanfare. This is one setting in which all the committee members show up. The room is packed with media, administration handlers, the nominee’s family and friends and spectators. The nominee delivers an opening statement, as does each senator. Then questioning, which can last for days, begins.
It has been labeled the Kabuki-theatre portion of the process: Senators ask predictable questions, nominees respond with formulaic answers. Nominees aim to demonstrate familiarity with the law, while trying to avoid any controversial position. They often duck tough questions by saying the issue might come before the court; they refuse to respond to hypotheticals in the absence of briefs and a record. The nominee and Senate supporters work to place the appointee in the “mainstream” of judicial thought; opponents portray the prospective justice as a dangerous radical.
Equally important, the public finally sees and hears the nominee for an extended period of time, so the appointee can emerge as a person rather than an abstraction. The nominee has the opportunity to demonstrate intelligence, charm, sensitivity and basic likeability.
The 1987 nomination of Judge Robert Bork is case in point. His radically conservative views provided sufficient grounds to reject his nomination, but his public persona as arrogant, unsympathetic and aloof sealed his fate.
Witnesses also testify at the hearing for and against the nominee — before a dwindling number of senators and a handful of compulsive C-SPAN viewers.
The decision whether to proceed with a hearing puts Senate Judiciary Committee Chairman Chuck Grassley (R-Ia.) on the spot. He has already felt pressure from his constituents, which might explain why he appears to have backed away from his initially adamant opposition to any Obama nomination. But Grassley now has the firm backing of the Republican leadership and will almost certainly deny the nominee a hearing.
If Grassley decided to place the nomination on the agenda for committee action — and he could decline to do so — the committee would have options. It could 1) refer the nomination favorably to the full Senate by majority vote, 2) reject the nomination by majority vote, thereby killing it, or 3) reject the nomination, but also vote to refer it to the full Senate. A tie vote on any of these options would be unlikely because the committee has 11 Republican and nine Democratic members. If there is a tie, it would prevent any action.
If Obama’s nominee unexpectedly got a hearing, it could be the point at which the appointee would be defeated.
In the unlikely event a nomination emerged from committee, McConnell could choose not to bring it to the Senate floor for a vote, which would spare vulnerable purple-state senators the need to go on record with a vote. If McConnell calculated that he needed to relieve substantial political pressure by allowing a vote, however, he could do so. That seems highly unlikely, though.
When Democrats revised the Senate rules under then-Majority Leader Harry Reid (D-Nev.), they retained the filibuster for Supreme Court nominations. Because Republicans control the Senate and seem united in their opposition to confirming any Obama nominee, the filibuster is unlikely to come into play. It remains available, however, as the final safeguard against confirmation of a nominee.
In the end, Obama is most likely to nominate a well-qualified, moderate nominee who could become a sacrificial lamb. Republicans will almost certainly deny the nominee the courtesy of meetings, a hearing and a vote. Even if the nominee received a hearing, the prospective justice would be unlikely to emerge from committee. In the unlikely event the nominee emerged from committee, McConnell would be unlikely to allow the nomination to come to the floor for a full Senate vote. And, even if the Senate voted, Republicans would have sufficient votes to defeat the nominee — if only because Obama nominated the candidate.
The next time a Republican politician preaches about strict adherence to the Constitution, or praises regular order in the Senate, chuckle and walk away.