WASHINGTON – Concerted Republican opposition to considering President Barack Obama’s pick for the Supreme Court showed early signs of splintering on Wednesday as a handful of influential senators opened the door to a possible confirmation hearing. One Republican even encouraged the president to nominate a candidate from his state.
Texas Sen. John Cornyn, the No. 2 Republican in the Senate, did not rule out a committee hearing on Obama’s forthcoming nominee to replace the late Justice Antonin Scalia. And Sen. Dean Heller said chances of Senate approval were slim, but added that his home state of Nevada should have a voice in the debate.
“That’s why I encourage the president to use this opportunity to put the will of the people ahead of advancing a liberal agenda on the nation’s highest court,” Heller said.
Sen. Orrin Hatch, R-Utah, who sits on the committee, said he opposes a filibuster to prevent a vote, as some Republicans have suggested. Senate Judiciary Committee Chairman Charles Grassley has also said he’d wait to see who Obama selects before ruling out a hearing in his committee.
Those senators formed a cautious but growing chorus of voices breaking with the absolutist position of Senate Majority Leader Mitch McConnell, who has told the White House not to even bother nominating a candidate. The Kentucky Republican and several Republicans up for re-election have maintained that voters in November’s presidential election should have a say in the direction of the nation’s highest court.
Cornyn, McConnell’s deputy, agreed that it should be left to the next president to pick a replacement for the late Justice Antonin Scalia. Still, Cornyn said it was up to Grassley to decide whether to schedule a hearing, and to McConnell to decide on a full Senate vote if the Judiciary Committee were to vote on the nominee.
“It’s entirely up to the Senate whether to confirm that nomination, and I think we should not,” Cornyn said on radio station KSKY’s “The Mark Davis Show.”
McConnell has shown no signs of softening his opposition to confirming an Obama nominee, which could put vulnerable Republicans in a precarious position as his party works to keep control of the Senate in the November elections. But Senate Democratic leader Harry Reid predicted Republicans would “cave in.”
“I think my Republican counterpart McConnell has made a terrible mistake by saying that he is going to ignore the president,” Reid said. He added: “The American people are going to make them pay if they jerk the president around on this.”
Obama has summarily dismissed the notion that Republicans have constitutional grounds to refuse to vote on his nominee. Vowing to exercise his responsibility to pick Scalia’s successor, Obama has sought to turn GOP resistance into a case study in Washington dysfunction and Senate gridlock in particular.
“The American people expect the Senate is going to show up and do their job even though they have a big election around the corner,” said White House spokesman Josh Earnest.
Heller, the Nevada Republican, mused that if Obama moves ahead with a nomination, “who knows, maybe it’ll be a Nevadan.” Among the names of potential candidates circulating in Washington corridors is Nevada Gov. Brian Sandoval – a Republican who supports abortion rights – although it would be unusual for Obama to nominate a candidate from the opposite party.
The pace of judicial confirmations always slows in presidential election years, thanks to reluctance by the party out of power in the White House to give lifetime tenure to their opponents’ picks.
In the past, lawmakers have sometimes informally agreed to halt hearings on lower court nominations during campaign season. But Obama argued that “the Supreme Court’s different.”
“There’s no unwritten law that says that it can only be done in off years. That’s not in the constitutional text,” Obama said Tuesday as he wrapped up a trip to California.
If Republicans seem seriously amenable to holding confirmation hearings, Obama would have greater reason to name a “consensus candidate,” a moderate nominee that Republicans would be hard-pressed to reject. If there’s virtually no chance of Republicans bending, Obama might pick a nominee who galvanizes Democratic support and fires up interest groups in the election year.
If no replacement is confirmed, the Supreme Court will operate with eight justices – not just for the rest of this court term, but for most of the next one as well. High court terms begin in October, and the 80 or so cases argued in the course of a term typically are decided by early summer. The court would be unable to issue rulings on any issue in which the justices split 4-4.
Subscribe to the Morning Review newsletter
Get the day’s top headlines delivered to your inbox every morning by subscribing to our newsletter.