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Question Day: Would Republicans Block Court Picks?

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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In an e-mail, reader Andy Graves asks:

Is it conceivable that a Republican Senate could simply refuse to confirm any Obama Supreme Court nomination? How would this likely play out?

It certainly is conceivable.

The most important variables are the timing of a vacancy and the size of the hypothetical Republican majority. With a presidential election on the way, the Senate always stops confirming judicial nominees at some point. A Republican majority would at least be likely to be aggressive about moving up that self-imposed deadline, even if it doesn't mean a moratorium for the full final two years of Barack Obama’s presidency. Nonetheless, a February 2015 vacancy is more likely to be filled than a May 2016 opening.

There’s also the question of numbers. With the number of votes needed to proceed on Supreme Court nominations still set at 60, it’s very possible that 41 Republicans would attempt to kill any nomination by filibuster. And that would be the case even if Republicans don’t have the majority. (And it’s not clear how many Democrats would be needed to change the rules so that high court nominations also are subject to simple-majority votes. But, in any case, that couldn't happen if there are 51 Republican senators). Nor is it clear that relatively moderate Republicans would have much leverage to thwart colleagues who would want to mount the filibuster. And many of the obstructers may not be responsive to anything other than talk show audiences and Tea Party rallies. As a result, the logic that applies to defeating any individual nominee would apply to an across-the-board blockade of all nominees. That, too, is a numbers game: there could be 52 Republican votes against some nominees, 45 votes against others, and only 39 for a full blockade.

I’ve always been skeptical of the claim that the particular justice being replaced is an important consideration. It would make just as much sense for Republicans to keep open the seat occupied by Stephen Breyer or Ruth Bader Ginsburg until a new president is in office in 2017 as it would to delay replacing Clarence Thomas or Antonin Scalia.

And remember, the Supreme Court isn’t the only important court. My hunch is that a Republican majority would continue to confirm federal trial judges, albeit at a slower pace and with plenty of individual defeats. Important groups among lawmakers' constituents want a functioning judiciary, and although District Court judges are important, they have limited authority, especially in setting precedents. Circuit Court slots are another story, however. They could be extremely difficult to fill because they are extremely important for making policy, which makes the stakes high, but unlike Supreme Court nominations, hardly anyone pays much attention, so there would be little mainstream outcry over what would be an outrageous use of power. So I wouldn’t be shocked to see an outright blockade set in early on, though here, too, the size of a Republican majority would be very important.

Back to the Supremes: Yes, Republicans would be blasted if they put in place an explicit blockade. That would also be true of a de facto blockade -- for example, if Republicans claim they will confirm moderate nominees, but in fact act to defeat (either by final vote or filibuster) any of President Barack Obama's picks. It’s just not clear that the criticism would come from anyone Republicans care about – and defying Ted Cruz and others with a vote for cloture or confirmation would be a fast ticket to RINOville. So it’s very easy to imagine that if there is an opening on the court in 2015, it won’t be filled until after the next presidential election.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Max Berley at mberley@bloomberg.net