A New Supreme Court Justice by Spring 2017? Don’t Count on It
Policy + Politics

A New Supreme Court Justice by Spring 2017? Don’t Count on It

REUTERS/Carlos Barria

With 330 days left in the President term, Senate Republican have rallied around the position that they won’t even meet one-on-one with, let alone vote on, Obama’s next nominee for the Supreme Court, threatening to extend the partisan fight well into the next administration.

Their decision was bolstered today by a report in The New York Times that revealed in 1992, the chair of the Senate Judiciary Committee, Joe Biden, argued that there should be a different standard for a Supreme Court vacancy “that would occur in the full throes of an election year.” The president should follow the example of “a majority of his predecessors” and delay naming a replacement, Biden said.

A New York Times analysis found that after a president selected a candidate, the Senate has never taken more than 125 days for an up-or-down vote on a that candidate. The most recent example of prolonged vacancy was Robert Bork, who was nominated by President Reagan on July 1, 1987, to replace Justice Lewis Powell. Bork was on tenterhooks for 114 days, until Oct. 6, before his confirmation was rejected by the Senate.

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The next in line, Anthony Kennedy, was nominated on Nov. 11 and took the oath of office on Feb. 18, 1988, roughly eight months after Powell announced his retirement.

The partisan brawl that’s erupted since the unexpected death of Justice Antonin Scalia, and has only intensified since, could put that timeline to shame.

On Tuesday, the 11 GOP members of the Senate Judiciary Committee emerged from a meeting with Senate Majority Leader McConnell and vowed not to hold hearings on a nominee, a stance the Kentucky lawmaker took about an hour after Scalia’s death. Panel members soon codified their support in a letter to McConnell.

The entire 54-member Republican caucus also met behind closed-doors for first its weekly policy lunch since recess and came out as a united front.

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“My view, and I can now confidently say the view shared by virtually everybody in my conference, is that the nomination should be made by the president that the people elect in the election that's now underway," McConnell said during a Capitol Hill press conference.

What’s more, he said he wouldn’t meet with Obama’s nominee should he or she make the rounds to individual Senate offices, the traditional first step in the confirmation process.

"I don't know the purpose of such a visit. I would not be inclined to take one myself,” McConnell told reporters.

He was soon seconded by John Cornyn of Texas, the Senate’s No. 2 Republican.

“I don’t see the point of going through the motions and creating a misleading impression that something else is going on,” said Cornyn, who sits on the Senate Judiciary Committee.

McConnell wouldn’t commit to giving the next president, whoever that is, an up-or-down vote on his or her nominee but said the Senate would at least weigh the choice.

“What I'm saying is whoever the nominee is that comes up next year will be considered by the Senate,” he said, adding he was unsure what that process would look like.

“But at the beginning of a four-year term, the suggestion that a Senate of either party wouldn't consider the nominee at all would not be correct … We're talking here about an election already underway, a vacancy created in a presidential election year. Next year is not a presidential election year -- this is a unique circumstance.”

However, the path forward in 2017 rests on two major, unanswered questions. Which party wins the White House in November? And which party controls the Senate?

If Republicans win the Oval Office and retain the Senate, they would have carte blanche to ditch Obama’s pick and make their own, restarting the clock. If Democrats win, a President Clinton or Sanders might be tempted to put forward their own choice. And if the government remains divided, the first 100 days, or the “honeymoon phase,” of any new administration likely would be consumed by a battle over the court vacancy.

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Democrats only have to pick up five Senate seats to regain the majority. The GOP’s hardline stance could wind up hurting them in the polls between now and November.

“We are very comfortable letting the American people speak on this issue,” said Sen. Roger Wicker (Miss.), the head of the National Republican Senatorial Committee.

But a Fox News poll released earlier this month found that registered voters by 62 percent to 34 percent want Obama and the Senate to "take action to fill the vacancy now.”  And a Pew Research Center poll released on Monday found 56 percent of Americans believe lawmakers should hold hearings and vote on the Obama’s nominee, while only 38 percent said Congress should wait until the next president takes office.

For their part, Senate Democrats remain convinced that Republicans will cave eventually.

McConnell “hasn't seen the pressure that's going to build. It's going to build in all facets of the political constituency in the country,” Senate Minority Leader Harry Reid (D-Nev.) said during a press conference.

Still, Reid said the minority wouldn’t turn into the “obstruct caucus,” holding up all legislation in the Senate, such as the 12 annual appropriations bills that fund the federal government.

Senate Minority Whip Dick Durbin (D-Ill.) said the rancor could have an impact on bipartisan efforts, like criminal justice reform.

“I’m afraid were going to have some hard feelings for a little while around here,” Durbin, a Judiciary panel member, told reporters.

Durbin said Democrats would invite Obama’s nominee to make the traditional Capitol Hill visits and that he hopes McConnell and Republicans “run for cover for fear that they’re going to get photographs taken with the nominee that they rejected without even meeting.”

He also didn’t rule out the idea of Democrats holding a mock Judiciary Committee on the eventual nominee, a move that would likely infuriate the GOP as both sides continue to entrench themselves.

“We’ll wait and see,” Durbin said.