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No Nominee Yet, But Supreme Court Battle Rages

Activists called on Congress to consider President Obama’'s Supreme Court nominee. (Bill Clark/CQ Roll Call)
Activists called on Congress to consider President Obama’'s Supreme Court nominee. (Bill Clark/CQ Roll Call)

The partisan battle over the Supreme Court vacancy continued with a furor Tuesday, and there isn’t even a nominee yet.  

Since news of Justice Antonin Scalia’s death broke on Saturday, roughly two dozen Senate Republicans have fallen in line behind Senate Majority Leader Mitch McConnell, R-Ky., who has argued that the next president should fill the vacancy on the high court. Democrats have blasted the GOP position, arguing that failing to even consider a nominee from President Barack Obama would ignore constitutional obligations and leave the Senate mired in gridlock. On Tuesday, Obama called on Senate Republicans to rise above the “venom and rancor” and give his nominee a fair hearing and a vote.  

“We’ve almost gotten accustomed to how obstructionist the Senate has become when it comes to nominations,” the president said at a news conference, pointing to the number of judicial candidates waiting for confirmation. “The fact that it’s that hard, that we’re even discussing this, is a measure of how the venom and rancor in Washington have prevented us from getting things done. This would be a good moment to rise above that.”  

Senate Judiciary Chairman Charles E. Grassley, R-Iowa, who agrees that the next president should fill the court vacancy, said he has not yet made a decision on whether his committee would hold a nomination hearing.  

“I would wait until the nominee is made before I would make any decisions,” Grassley told reporters, according to Radio Iowa . “In other words, take it a step at a time.”  

Grassley’s comment suggested that the Senate could examine Obama’s nominee, even if senators do not confirm that person or even take a vote. Obama has not said when he would submit a name, but doesn’t plan to do so during the current Senate recess. The chamber is scheduled to resume work Feb. 22.  

Sen. Thom Tillis, R-N.C., a member of the Judiciary Committee, said while he supports McConnell’s position, the GOP may have to take a second look at the president’s eventual nominee to avoid being painted as obstructionists.  

“Let’s not count out that maybe the president recognizes he’s out of step with the American people, that the American people kind of like the composition of the Supreme Court, so he puts forth somebody who has an identical resume and capabilities of Justice Scalia. That’s unlikely to happen,” Tillis said on The Tyler Cralle Show in Wilmington, N.C. “But I think we fall into the trap, if we just simply say, ‘sight unseen,’ we fall into the trap of being obstructionists.”  

One vulnerable Republican senator, Ron Johnson of Wisconsin, reiterated his position that a new president should fill the vacancy, but also said there wouldn’t be much of a political difference between voting or not voting on Obama’s nominee.  

“If we choose not to confirm, either by not acting or by voting that choice down, either way it’s an action. It’s not giving consent to his nominee,” Johnson said on WLS 890’s “‘Big’ John Howell Show.”  

When Howell suggested Republicans would be painted as “petulant children” if they did not vote on a nominee, Johnson responded, “So you put it up for a vote and vote an individual down. I don’t think there’s much political difference one way or the other.”  

Senate Minority Leader Harry Reid’s office circulated Tillis’ remarks, touting them as evidence the GOP position is untenable.  

“The next step in this process will be for Senator McConnell to back down and give President Obama’s nominee a hearing and a floor vote. That’s a simple reality,” said Reid’s deputy chief of staff Adam Jentleson. “The cracks in the Republican facade are already showing.”  

Even if Obama’s choice is granted a hearing, it’s unlikely that Republicans on the committee will allow the nominee to move  forward. Nine of the 11 Republicans on the panel already have indicated they believe the next president should fill the vacancy.  

Sen. Jeff Flake of Arizona is traveling overseas and will not likely be commenting until he returns and “can speak with his constituents and colleagues,” a spokeswoman said. Sen. David Perdue of Georgia has not yet commented and did not return requests for a response.  

Though questions remain as to whom the nominee will be, and what exactly the Senate will do about it, the partisan back-and-forth is not letting up. Democrats  chide Republicans for indicating they would block Obama’s nominee. Reid, a Nevada Democrat, authored an opinion piece  in The Washington Post accusing the GOP of “nakedly partisan obstruction.”  

“If my Republican colleagues proceed down this reckless path, they should know that this act alone will define their time in the majority,” Reid wrote.  

Sen. Charles E. Schumer, D-N.Y., the Senate’s No. 3 Democrat, referenced the 2013 government shutdown, which caused congressional approval ratings to plummet.  

“But, just as in 2013, when there was a huge public outcry and the Republican leadership had to back off, the same will happen now — and they will have to back off this extreme, partisan stance,” Schumer said.  

The New York Democrat also has come under fire from Republicans in the political fight over what should happen next at the Supreme Court, as both Republicans and Democrats have pointed to the history books to make their cases.  

Republicans and conservative commentators harkened back to 2006, when some Senate Democrats, including Schumer, supported a failed effort to block President George W. Bush’s high court nominee, Judge Samuel Alito.  

In July 2007 , with roughly 16 months left in Bush’s second term, Schumer told the American Constitution for Law and Society, “For the rest of this president’s term, and if there is another Republican elected with the same selection criteria, let me say this: We should reverse the presumption of confirmation. … I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.”  

Schumer, a member of the Judiciary Committee, fired back at his critics, writing in a Medium post that comparing his remarks to the current GOP position like comparing apples to oranges.  

“There was no hint anywhere in the speech that there shouldn’t be hearings or a vote,” Schumer wrote. He later added, “Everything I said in 2007 holds true today: It is the Senate’s duty to hold hearings and vote on the nominee based on the merits. And it is fair to evaluate a nominee based on his or her record.”  

As senators on both sides of the aisle trade barbs over who should nominate the next justice, the court will remain evenly divided — with four justices appointed by Republicans and four by Democrats. The split court will have to deal with several high-profile issues, including an impending case over North Carolina congressional districts . If Republicans block a nominee until a new president takes office in January 2017, it could be the longest vacancy in the court’s history.  

An extended vacancy could also affect congressional elections in swing states, especially if Republicans are painted as obstructionists. And it could stall work on bipartisan priorities within the Senate.

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