Senate Republicans on Tuesday united behind an official position on how to deal with President Obama’s expected nominee to replace the late Supreme Court justice Antonin Scalia: no hearings, no votes and no new justice until Obama is out of office.
“Presidents have a right to nominate, just as the Senate has its constitutional right to provide or withhold consent,” Senate Majority Leader Mitch McConnell (R-Ky.) said in a morning floor speech. “In this case, the Senate will withhold it.”
That declaration was underscored after McConnell held a closed-door meeting with Republicans sitting on the Senate Judiciary Committee. All 11 GOP panel members subsequently signed a letter pledging not to hold hearings on any replacement for Scalia until a new president is inaugurated.
Their decision not to act, they said, was “based on constitutional principle and born of a necessity to protect the will of the American people.” But Republican senators have also been emboldened in recent days by past statements from Democratic senators arguing against confirming the judicial nominees of Republican presidents in election years.
In particularly heavy rotation Tuesday was Vice President Biden’s 1992 suggestion, made when he was a senator and chairman of the Judiciary Committee, that the panel ought to “seriously consider” not holding hearings on an election-year Supreme Court nominee.
“We like Joe Biden on this,” Sen. Lindsey O. Graham (R-S.C.), a committee member, said after emerging from the meeting. “He was right.”
At the weekly luncheon of Republican senators that immediately followed, McConnell screened a video clip of Biden’s comments, captured by C-SPAN’s cameras, as well as remarks on judicial nominations from Senate Minority Leader Harry M. Reid (D-Nev.) and Sen. Charles E. Schumer (D-N.Y.), a senior Judiciary Committee member.
“Both sides of the aisle seem to agree vehemently that if a president is in their last year, they shouldn’t be able to confirm a lifetime member of the Supreme Court,” Sen. Bob Corker (R-Tenn.) said after leaving the lunch.
Democrats fumed over the Republican position, with Schumer telling reporters that it was “beyond the pale.” In a floor speech, Reid called it emblematic of an obstructionist philosophy that he said was favored by presidential candidates Donald Trump and Ted Cruz.
Schumer, who said in a 2007 speech that the Democratic Senate should not confirm any further Supreme Court nominees of President George W. Bush “except in extraordinary circumstances,” said that the “back and forth” about past statements would not change the politics of the situation: “The public doesn’t care about that; the public cares about us doing our job.”
There is some evidence that a Republican blockade could have significant political repercussions. A poll conducted by the Pew Research Center over the weekend found that more than half of Americans favor holding hearings and a vote on Obama’s Supreme Court nominee. About 1 in 3 Republicans believe that the Senate should act, the survey found.
But most conservative activists are deeply opposed to allowing Obama to replace Scalia, a judicial icon of the right, and they fear that even granting a hearing could create new pressure to advance and eventually confirm a nominee. McConnell waited only hours after the announcement of Scalia’s death to declare that the next president should name his successor.
McConnell and several other Republican senators went further Tuesday, saying they would not only oppose hearings but also would not participate in face-to-face meetings with the nominee, a traditional courtesy that most senators give to prospective justices.
Asked what he would do if an Obama nominee to the Supreme Court came to his office seeking a meeting, Sen. Orrin G. Hatch (R-Utah) said he would not grant one: “I think once we take this position, we ought to stand by it.”
“It’s not obstruction,” said Hatch, a former Judiciary Committee chairman and the most senior Republican in the Senate. “This is saying that this is so important, it should not be brought up in this messy time, and it ought to be brought up for the next president, whoever that may be.”
Democratic aides privately delighted over the prospect of cameras capturing a qualified nominee being turned away from the offices of top Republican leaders. They noted that no previous Supreme Court nominee has been denied a Senate hearing, while Republicans pointed out that the Senate last confirmed a justice nominated by a president of the opposite party for an election-year vacancy in 1888.
“They’re headed in the wrong direction, and they’re going to have a head-on crash,” Reid said of Republicans. “And it’s going to be very, very, I think, bad for them.
Sen. Roger Wicker (R-Miss.), chairman of the National Republican Senatorial Committee, brushed off the idea that GOP candidates would pay a price in November if the Senate shelved Obama’s nominee. “We are very comfortable letting the American people speak on this issue,” he said.
Only two Senate Republicans, Susan Collins (Maine) and Mark Kirk (Ill.), have firmly stated their desire to hold hearings on an Obama nominee.
Other Republicans appear to be rallying behind the position of McConnell and their Judiciary Committee colleagues. For instance, Sen. Thom Tillis (N.C.), who is on the Judiciary Committee and expressed discomfort last week with denying a hearing “sight unseen” to Obama’s nominee, signed the letter Tuesday urging that no nominee be considered.
Another Republican senator who previously expressed openness to a hearing indicated Tuesday that he had changed his view. Sen. Dan Coats (Ind.) told the Fort Wayne Journal Gazette last week that Obama’s nominee “would deserve a hearing if that person is not someone that is just obviously nominated for political purposes.”
But Coats said Tuesday that there was “pretty solid agreement” among Republican senators not to proceed with any nomination: “If the decision is made to let the American people decide, then going through the motions is kind of a worthless exercise.”
McConnell declined to address whether the next president would definitely win confirmation of his or her selection for the court. Under a rules change orchestrated by Democrats in 2013 when they held the majority, Supreme Court selections are the only presidential nominees still subject to a 60-vote threshold to end a filibuster and advance to a final confirmation vote.
After the news conference ended, Wicker sought out The Washington Post to make clear that the filibuster possibility next year remained intact because Reid left it in place while serving as majority leader in 2013.
Reid on Tuesday accused the GOP of “changing the Senate” with their move to block Obama’s nominee. ”We have to have a government that functions,” he said. “We have to have a Senate that operates with collegiality and fairness.”
Meanwhile, Justice Samuel A. Alito Jr. on Tuesday became the first justice to speak publicly about the court in the wake of Scalia’s death, in previously scheduled remarks to the graduating class at Georgetown Law Center.
Asked by a student his thoughts about sitting on an eight-member court for a year or more, Alito said, “We will deal with it.”
He pointed out that the Constitution does not specify the size of the Supreme Court: “It’s hard to believe that there were times in the history of the court when the court had an even number of justices. They must have been more agreeable in those days.”
Correction: An earlier version of this story mistakenly reported that Sen. Susan Collins has called for a vote on an Obama Supreme Court nominee. She has in fact called only for hearings.
Robert Barnes contributed to this report.