WASHINGTON – Senate Republicans emerged from a closed-door meeting Tuesday committed to maximum obstruction of any nominee by President Obama to fill the vacancy on the U.S. Supreme Court — no hearings and no votes.
Republicans on the Senate Judiciary Committee pledged to take no action on any nominee before the next president takes office in January 2017, setting up what could be a tense stalemate for the rest of Obama’s presidency on his effort to replace the late Justice Antonin Scalia.
“This nomination will be determined by whoever wins the presidency in the fall,” Senate Majority Leader Mitch McConnell told reporters Tuesday. “I agree with the Judiciary Committee’s recommendation to not have hearings. In short, there will not be action taken.”
McConnell and Judiciary panel member John Cornyn of Texas said they wouldn’t be inclined to meet with anyone chosen by Obama for the high court. Committee member Lindsey Graham of South Carolina said he would not meet with a nominee. This thrust the Senate into unprecedented territory; Senators meet with high-court nominees as matters of courtesy and cordiality, but even that tradition has been rejected.
“I don’t see the point of going through the motions. We know what the outcome is going to be,” Cornyn said.
Scalia died Feb. 13, and a decision by the Senate not to confirm a replacement would leave the court with potential 4-4 decisions, setting no legal precedent, on many of its cases for a year or more. The court now contains four Republican nominees and four Democratic ones, meaning that allowing Obama to replace Scalia would tip the balance to Democratic appointees for the first time since 1969.
Obama has made clear that he will choose a nominee, and two Republican senators, Susan Collins of Maine and Mark Kirk of Illinois, have already broken ranks to say that they would be willing to vote on a candidate.
Justice Samuel Alito, speaking Tuesday at Georgetown University in Washington, said, “There’s nothing in the Constitution that specifies the size of the Supreme Court. And it’s hard to believe that there were times in the history of the court when the court had an even number of justices.” The court “must have been more agreeable” then, he said.
“We will deal with it,” Alito said. “What’s happened in the last week has been a great shock to us.”
McConnell said Democrats would be blocking a nominee if they were in charge and a Republican president sought to fill a vacancy that occurred in a presidential election year.
Still, in February 1988, the last year of Republican Ronald Reagan’s presidency, the Democratic-controlled Senate overwhelmingly confirmed his nomination of Justice Anthony Kennedy, who was nominated the previous November. He is still serving on the court.
White House spokesman Josh Earnest said Tuesday that refusing to fill Scalia’s seat would subject the Supreme Court to a kind of politics it hasn’t encountered in two centuries.
“This would be a historic and unprecedented acceleration of politicizing a branch of government that’s supposed to be separated from politics,” Earnest said. Obama has been telephoning senators to discuss the matter, including some Republican members of the Judiciary Committee, and he will continue making calls, the spokesman said.
McConnell of Kentucky said the “overwhelming view” of Republicans is that the vacancy should not be filled “by this lame-duck president.”
Cornyn said he and other Judiciary Committee Republicans are unanimous. “It’s not about the personality, it’s about the principle” that the people should decide in November’s election, he said.
Senate Minority Leader Harry Reid, a Nevada Democrat, said Republicans are trying to “hold hostage an entire branch of government” and are engaged in a “full-blown effort to delegitimize” Obama’s presidency during his final year in office.
“All we want them to do is to do their job,” said Reid, who accused Republicans of doing the bidding of Republican presidential candidates Donald Trump and Ted Cruz, a Texas senator. He said Democrats never did what the Republicans are doing, noting that he and other Democrats declined to filibuster Justice Clarence Thomas and allowed Alito on the court although a number of them opposed him.
Republicans appeared energized by a 1992 video of Vice President Joe Biden, who at the time was chairman of the Senate Judiciary Committee, arguing that if a vacancy occurred on the Supreme Court at that point in an election year, the Senate should delay consideration of a nominee until after the election, unless it was a true consensus candidate.
“The words of President Obama’s own number two. What else needs to be said?” McConnell said on the Senate floor.
Biden said his words were taken out of context, and he issued a statement boasting of his record in confirming federal judges while chairman of the Senate Judiciary Committee. Aides to Biden also insisted Tuesday that he had been warning against filling a vacancy created by a voluntary resignation of a justice rather than a vacancy created by an unexpected death. In any event, no such vacancy occurred.
The New York Times contributed to this report.