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Unexpected twist in Senate move to ignore Scalia nominee

Overcoming obstacles

Perhaps surprisingly, Tuesday's decision not to hold hearings to replace Supreme Court Justice Antonin Scalia won't bring Congress to a halt. 

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    Senate minority leader Harry Reid (D) of Nevada discusses efforts to replace late Supreme Court Justice Antonin Scalia on Capitol Hill in Washington Tuesday.
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After a year of relative cooperation in the Senate, severe partisanship has come roaring back over a United States Supreme Court nominee to replace the late Justice Antonin Scalia. 

Tuesday’s unanimous recommendation by Republicans on the Senate Judiciary Committee not to hold a hearing for a potential replacement, and to delay action until the next president, set Democrats on a tear. 

They called the move historic, saying it was an example of the far right’s influence, and said it endangered the very system of government set up by the Founding Fathers. Refusing to even meet with a nominee will backfire on Republicans at the ballot box, they predicted.

But the dire warnings also came with a surprise: Neither side expects the political chasm over the issue to significantly affect legislative business for the rest of the year. Bills to overhaul prison sentencing, combat heroin abuse, and reauthorize the Federal Aviation Administration still have a chance of passage, as does a patent bill.

That’s partly because Democrats have announced they will not engage in reprisal obstruction.  

“I’m not going to turn into the destruct caucus,” Senate minority leader Harry Reid (D) of Nevada told reporters on Tuesday. “We will do our work,” he said, in answer to a question about whether Democrats would block the spending process to force the Republicans’ hand on a nominee.

“I don’t think [the nomination issue] should affect anything else in the Senate at all,” said Senate Republican conference chairman John Thune (R) of South Dakota. “There’s a lot of interest on both sides in moving bills that we know we have to get done.” The nomination fight “is a separate issue,” he told reporters Tuesday.

The proof of those statements remains to be seen, of course. But there’s another reason that some lawmakers think the nomination debate will not bring Congress to a halt. As Senator Reid acknowledged, there’s no point in Democrats shutting the Senate down procedurally because “there’s nothing to shut down.”

This is a presidential election year and precious little is achieved in such years. Beyond that, some of the few bills in the hopper involve Republican-on-Republican disputes. 

For instance, both the House and Senate Judiciary Committees approved bipartisan bills to reduce mandatory minimum sentences for small-time drug offenders last year – but an intraparty disagreement over the need to prove criminal intent is preventing them from advancing to the floor. Conservatives including presidential candidate Sen. Ted Cruz (R) of Texas also say the bill is too soft on crime.

Still, not all Democrats believe the nomination tornado will cut a narrow path. It could “make it difficult for ordinary business,” said Senate minority whip Dick Durbin (D) of Illinois. He called it a “historic moment” as Democrats said that never before has a Supreme Court nominee been denied a hearing or a vote on the Senate Judiciary Committee – the only exception being nominees that went directly to confirmation.

Democrats may not have a procedural strategy to force the Republicans’ hand on this, but “we’re not going to let this go away,” Senator Durbin said. The nominee will be sent up by the White House, and he or she will meet with Senate Democrats. “We’ll be discussing that nominee, and we’ll be reminding the American people that the Republicans in the Senate refuse to do their job.”

A majority of Americans want the president to nominate a Supreme Court justice, according to a Reuters/Ipsos poll – though the view is largely split along party lines.

Most Republican senators seem unconcerned that their move could cost them in November – though Sen. Mark Kirk (R) of Illinois, the most endangered of the Republican incumbents, has said that he would be willing to vote on a nominee.

Senate majority leader Mitch McConnell (R) of Kentucky, however, said Tuesday that he agreed with the Judiciary Committee's recommendation. “In short, there will not be action taken,” Senator McConnell told reporters. The majority leader also said he would not meet with a nominee.

The reasoning is that a Supreme Court appointment should not be made amid a presidential election. 

“A lame-duck president should not be making a lifetime appointment to the Supreme Court,” Senator Thune said. Democrats would argue the same if the situation were reversed, Republicans say.

When asked whether Republicans were concerned about political pressure, Sen. Orrin Hatch (R) of Utah said, "I'm not concerned about that.”

As to Democratic charges of obstruction, he said simply, “it’s not obstruction. This is saying that this is so important that 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.”

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