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How and Why McConnell Might Shift on Supreme Court Vacancy

UNITED STATES - FEBRUARY 11: Senate Majority Leader Mitch McConnell, R-Ky., speaks during the Senate Republicans' news conference on the
McConnell says the next president should choose the next Supreme Court justice. (Photo By Bill Clark/CQ Roll Call)

Does Mitch McConnell have an escape hatch? Absolutely. Does he need one? Perhaps. Does he want one? Not clear yet.

Precious little happens by genuine accident or reflexive impulse anywhere at the Capitol, and fewer things still are said on a whim or done as a lark at the congressional leadership level. So it’s a solid presumption the Senate majority leader had considered all his options and knew exactly what he was doing at 6:15 p.m. on Feb. 13, when his office hit the send button on a nuclear gauntlet less than 90 minutes after the first report of Justice Antonin Scalia’s death.

“The American people‎ should have a voice in the selection of their next Supreme Court justice,” his emailed press statement declared. “Therefore, this vacancy should not be filled until we have a new president.”

Ten days later, the risk versus reward balance in the Kentucky Republican’s strategy seems wobbly at best.

McConnell plans to gauge support for his approach during a meeting Tuesday with the 11 Republicans on the Judiciary Committee. The chairman, Charles E. Grassley, initially had McConnell’s back but shifted positioning several times during last week’s recess while visiting with voters in Iowa, where he’s seeking a seventh term on a political brand that’s all about plainspoken diligence in the performance of duty.

The Judiciary members will need to hold unified for McConnell to get what he now says he wants — that the Senate spend the rest of 2016 flat-out ignoring the nomination President Barack Obama is certain to announce, probably in the next three weeks. (The White House said Monday the president was making a series of telephone calls to senators from both parties to consult about possible picks.)

If even a few Republicans break ranks, the pressure will grow enormously to follow regular order and schedule confirmation hearings and a committee vote — and then a floor debate, no matter what Judiciary decides.

(The last time a Supreme Court pick failed to muster a majority in committee was 25 years ago. The panel deadlocked 7-7 on whether to endorse Clarence Thomas but then voted 13-1 to send his nomination to the floor without a recommendation — a roll call that happened before sexual harassment allegations came to light that made his confirmation intensely problematic.)

If McConnell feels compelled to change course, it’s more likely he’ll search for a way out that’s a recalibration of his current approach — not a wholesale capitulation to the White House, Senate Democrats and liberal interest groups calling for a Scalia successor to be seated without any special election-year delay.

“An unprecedented attempt to hold hostage an entire branch of the federal government,” was the way Minority Leader Harry Reid described McConnell’s delaying plan during a Senate floor speech Monday. The GOP leader eulogized Scalia but said not a word about the fight over a successor.

“An unprecedented attempt to hold hostage an entire branch of the federal government,” was the way Minority Leader Harry Reid described McConnell’s delaying plan during a Senate floor speech Monday. The GOP leader eulogized Scalia but said not a word about the fight over a successor. Grassley took to the floor to detail how Vice President Joseph R. Biden Jr., as a Delaware senator in 1992, suggested high court nominees should not be considered in an election year.

The most obvious alternative is for McConnell to say that, upon reconsideration, he’s decided Republicans ought to exercise their “advice and consent” obligations more affirmatively — and as a result, they’ll afford whomever the president proposes a comprehensive vetting. The hope would be such a promise neutralizes criticism of the GOP as reflexively partisan and anti-constitutional — while preserving the party’s option to conclude that, after an exhaustive review, the nominee must be spurned because of a fatally flawed background or an unpardonable leftist extremism.

Notably, this course was promoted Monday by Mark S. Kirk of Illinois, one of five GOP senators waging tough re-election races in states Obama carried in both his elections. Senators have a duty to vote on high court nominees “following a fair and thorough hearing along with a complete and transparent release of all requested information,” Kirk wrote in a Chicago Sun-Times op-ed. “The Senate’s role in providing advice and consent is as important and significant as the president’s role in proposing a nominee.”

An advantage to this approach is that it allows the GOP to look like it’s being serious and cooperative while in fact it’s engaged in a purposeful “slow walking,” keeping Obama’s pick in limbo until many more pages on the election-year calendar are torn away.

At the moment, polling suggests voters are divided on whether this president or his successor should choose Scalia’s replacement. But public opinion shows the McConnell strategy presents significant risks in other ways. Making the 2016 election into a referendum on the future of the court steers the campaign debate away from economic growth and national security, where the party has a solid advantage, and toward many of the civil rights and social issues where the Democrats have the electorate on their side.

But plenty of attitudes might shift by fall, and if by then a high court confirmation (or rejection) looks to provide a tangible boost the GOP presidential nominee or some vulnerable GOP Senate candidates, Republicans could engineer either outcome.

If it gets to be Nov. 9, and the White House or the Senate have been won by the Democrats, the Republicans could decide to confirm any reasonably mainstream center-left Obama pick as the bird-in-the-hand alternative to whomever the new president might choose or the next senatorial majority might accept.

All of his options presume McConnell keeps conforming to the well-established pattern of his Senate career, which has routinely prioritized the party’s acquisition and retention of power ahead of advancing its policies.

“He is not a conservative ideologue, but rather the epitome of the permanent campaign of Washington: What matters most isn’t so much what you do in office, but if you can win again,” McConnell biographer Alex MacGillis wrote in Sunday’s New York Times, and that’s why the senator’s current position on holding the Scalia seat open for a year represents such a striking departure. “In throwing down the gauntlet so emphatically, and potentially riling up a Democratic electorate, Mr. McConnell was doing something deeply out of character: putting at risk his and his party’s prospects in the coming election.”

Acquiescing, even a little, in the calls for a regular confirmation process would send this signal: McConnell has concluded that — after initially working to hold the fort for his base on the right — trying to preserve Republican power at the Capitol is more important than warding-off a generational shift to the left in the balance of power across the street at the Supreme Court.

Contact Hawkings at and follow him on Twitter at @davidhawkings.


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