Post-Scalia, Senate Republicans See Tough Optics on Blockade

  • Leaders must decide on hearings, votes as Democrats cry foul
  • Democrats will keep up the rhetoric, but options limited

The U.S. Supreme Court is seen on Aug. 1, 2015, in Washington.

Photographer: KAREN BLEIER/AFP/Getty Images

Republicans seem nearly united on blocking President Barack Obama from filling the vacancy on the Supreme Court left by Antonin Scalia’s death -- but not on their leaders’ chosen plan of inaction.

Republican leaders and most of the rank-and-file appear to be on board with a blockade that lasts at least through the November elections to prevent a dramatic shift in the balance of power on the high court. 

But Republicans haven’t yet decided exactly how they will orchestrate their opposition. After returning from a week-long recess Monday afternoon, they will be spending much of the week charting their course forward.

They have several options, starting with the most obstructive path -- dubbed #nohearingsnovotes by talk radio host Hugh Hewitt -- where they simply ignore the president’s pick.

But that tactic could cause some Republicans heartburn and likely give fuel to Democratic accusations of naked partisanship. 

Hearing Risks

Republicans could also hold hearings, but prevent a nomination from coming to the floor -- or allow a vote and either filibuster the pick or vote it down.

Judiciary Chairman Chuck Grassley, an Iowa Republican who is running for re-election, was noncommittal last week. North Carolina Senator Thom Tillis, another Republican on the Judiciary panel, warned against appearing obstructionist by deciding not to even consider the president’s nominee before one is named.

Senator Mark Kirk of Illinois, the Republican facing the toughest re-election battle, became the first senator in his party to say the Senate has a "duty" to consider a nomination.

"I also recognize my duty as a senator to either vote in support or opposition to that nominee following a fair and thorough hearing along with a complete and transparent release of all requested information," he wrote in an op-ed in the Chicago Sun-Times.

No Outreach

Senator Susan Collins of Maine also told reporters Monday that the Senate should hold hearings and that she would want to meet with any nominee, although she said the White House has yet to reach out to her.

But holding a hearing would have unpredictable results. 

For starters, if a nominee performs well in what would be a widely viewed spectacle, polls could turn more strongly against the blockade and amp up pressure on vulnerable senators who face the voters in November. 

“There’re not going to be any hearings," predicted Senator Roger Wicker of Mississippi, who heads the Republican Party’s Senate campaign arm. “If we take the position that this is a matter of a decision for the American people, it should wait until after the election. There would be no point.”

Cruz Factor

A hearing would also provide a forum for Senator Ted Cruz, a Judiciary Committee member who has made his experience as a law clerk at the court a main feature of his presidential campaign. Republican leaders are already uneasy about the Texas firebrand’s status as a serious contender, although by the time hearings would occur, the Republican nomination fight could theoretically be all but over.

If Republicans say no to a hearing, they are likely to double down on their message that Democrats are hypocrites when it comes to considering judges nominated by another party’s president, although there are plenty of quotes showing Republicans switching their own positions, too.

Eight years ago, Democrats blocked some of President George W. Bush’s circuit court nominees from getting a hearing. But the minimum 340-day delay proposed by Republicans in filling this Supreme Court vacancy would be unprecedented in modern high court history.

Democratic Options

Democrats also have a lot to talk about.

Leaders have openly suggested that the White House choose a "mainstream" candidate, because they think it would help them keep the pressure on Republicans.

Democrats will also discuss their strategy, aimed at maximizing the political pain for Republicans while minimizing the fallout for legislative agenda items they would like to pass this year.

Most of the bills the Senate could debate this year that have a chance of becoming law would likely be ones that Democrats support, including such White House priorities as a criminal justice overhaul and other nominations that remain pending. This suggests that Democrats would have little incentive to block other Senate action in retaliation for Republican refusal to act on a Supreme Court nominee.

Even so, Democrats will likely be looking for procedural maneuvers that might put Republicans on the spot, or perhaps even force a proxy vote on the eventual nomination.

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