As Paul noted earlier, Ted Cruz is now arguing that if and when Hillary Clinton wins the presidency, Senate Republicans should seriously consider maintaining their blockade on filling the Supreme Court vacancy beyond the election. A handful of conservative legal scholars have gone further, arguing either that maybe it’s time to shrink the Court or to simply refuse to give Merrick Garland or any other Hillary Clinton nominee a hearing ever.
Now Politico’s Burgess Everett reports that a war is set to take place among Senate Republicans over whether to pursue some version this strategy, which means you can’t rule out the possibility that they might not act to fill Antonin Scalia’s seat at all next year, or perhaps beyond that. Senator Jeff Flake of Arizona is strongly criticizing Cruz’s stance, and he’s claiming that plenty of Senate Republicans agree with him, ensuring action.
But Senate Majority Leader Mitch McConnell and all of the members of the Senate Judiciary Committee are declining to say whether they will act. Everett asked the offices of McConnell and those other GOP Senators whether they agree with Cruz or Flake on this question, and received nothing but dead air in response:
A spokesman for McConnell pointed to comments made a month ago, when the GOP leader declined to speculate on how a Supreme Court nomination might be handled if Clinton wins….Spokespeople for most members of the Judiciary Committee did not respond to emails seeking comment on whether they agreed with Flake or Cruz.
There’s nothing in the Constitution that requires Senate Republicans to act. But what’s really striking here is how effortlessly the rationale that Senate Republicans themselves offered — for months and months on end — for not acting on Garland this year has been tossed out the window.
McConnell and many other Senate Republicans said again and again that it would be wrong of them to act on Garland before the election, because it would deprive the American people of a say in the choice. Only allowing the next president to appoint Scalia’s replacement would make it possible for the American people to weigh in on the question, via the election.
Here’s McConnell saying this last March:
“I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president…The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.”
At the time, House Speaker Paul Ryan and Senator John Cornyn agreed. Ryan claimed: “We should let the American people decide the direction of the court.” Cornyn asserted: “The only way to empower the American people and ensure they have a voice is for the next President to make the nomination to fill this vacancy.”
Also in March, McConnell said in a speech on the Senate floor that Senate Republicans would not act on Garland “so that the American people have a voice in this momentous decision.” At around the same time, McConnell put it this way in a statement:
“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next President nominates, whoever that might be.”
Numerous Republican Senators on the Judiciary Committee signed a February letter making the same point:
As we mourn the tragic loss of Justice Antonin Scalia, and celebrate his life’s work, the American people are presented with an exceedingly rare opportunity to decide, in a very real and concrete way, the direction the Court will take over the next generation. We believe The People should have this opportunity….to protect the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.
Putting aside the substance of this dispute, there’s no way around this basic fact: If Clinton is elected president, the American people will have weighed in on the direction of the Court and will have exercised their will on this question — by the lights of these Republican Senators themselves.
Now, I don’t know how seriously we should take the refusal of McConnell and others to say whether they’ll act. Perhaps they just want to wait until after the election to confirm that they will, to avoid demoralizing the base before the voting. Indeed, Senator Flake told Politico that he had privately discussed the matter with McConnell, and came away doubting that he would really support a permanent blockade. And of course, all this could be moot if Democrats win the majority — at which case the battle will shift to the question of whether Republicans will filibuster Clinton’s nominee, and if so, whether Democrats will change Senate rules to get around ti.
But for now, consider it confirmed that Republicans were just kidding about all that will-of-the-people stuff. Or least consider it confirmed that what they really meant is that the American people should exercise their will in determining the direction of the Court by electing a Republican president.