Supreme Court Fight Won’t Die, No Matter How Hard Republicans Try

New York Times

By David Herszenhorn and Carl Hulse

February 25, 2016

Supreme Court Fight Won’t Die, No Matter How Hard Republicans Try 

Senate Republicans, facing fierce criticism from Democrats on Capitol Hill, insisted Thursday that they would face no political retribution from their decision to shun any Supreme Court nomination made by President Obama, expressing confidence that they would not be hurt at the polls in November.

“The American people are pretty much split on it,” said Senator Thom Tillis, Republican of North Carolina, citing polls that showed the country divided on whether the Senate should act on a nomination. “For that reason, I don’t think it will be a major factor.”

But Democrats said the issue would be valuable in motivating turnout and helping them close the gap with conservative Republican voters energized by Donald J. Trump. They said they were excited about polls showing independent voters siding with Democrats because independents could be in a position to decide not only the presidential election, but also Senate elections in swing states.

“To be honest, this is why people hate the Senate,” Senator Jon Tester, Democrat of Montana, who is chairman of the Democratic Senatorial Campaign Committee, said in an interview. “Elections are about accountability. We have a job to do and we need to do our job. People are going to ask the same question: ‘Why aren’t you doing your job?’ ”

Supreme Court Nominees Considered in Election Years Are Usually Confirmed

Since 1900, the Senate has voted on eight Supreme Court nominees during an election year. Six were confirmed.

Polls from past presidential elections offer some guidance on voter behavior. However, both parties agreed this year’s election might be unique.

In 2008, the last time a new president was being elected, exit polls showed that only 7 percent of those voting considered future appointments to the court to be the most important factor in their choice, although 47 percent rated it as one of several important factors. More than 40 percent said it was a minor factor or none at all.

In 2016 races, Rob Jesmer, a Republican consultant and former executive director of the National Republican Senatorial Committee, said: “It is not going to change voting behavior. People who feel strongly about this have already made up their minds.

“The idea that out of all the issues facing the country — whether it is ISIS, the economy or immigration — that this is going to trump those issues, I find to be kind of laughable,” Mr. Jesmer added.

Democrats insisted they could use the court fight to spur voters on the individual priorities that resonate with them, citing the stakes for climate change, campaign finance changes, abortion rights, immigration — mobilizing them on a topic that goes beyond the court but is tied to who chooses the new justice.

Whoever turns out to be right, both sides hardened their positions on Thursday as one potential nominee, Brian E. Sandoval, Nevada’s Republican governor, sent out a statement that he did not wish to be considered for the job.

Democrats opened their assault when more than two dozen senators stood in a brisk wind in front of the Supreme Court and criticized Republicans for what they said was outrageous intransigence in refusing to consider any nominee to fill the spot left by the death of Justice Antonin Scalia.

“We have obstruction that is on steroids,” said Senator Harry Reid of Nevada, the Democratic leader. “Never in the history of the country has there been anything like this.”

But while the tableau of United States senators standing before the court’s iconic marble pillars underscored the Democrats’ determination to raise public pressure on Republicans, it also accentuated their powerlessness, in terms of legislative procedure, to force action on a nominee.

Republicans adopted a strategy of trying to deflect attention from the court fight and move on to other business in the Senate.

Divisive Supreme Court decisions are more likely to be re-examined — and possibly overturned — when a court changes. In the Roberts Court, 85 cases split 5 to 4 or 5 to 3 with Justice Scalia in the conservative majority, many with similar judicial themes.

“I think our friends across the aisle would agree that there is a lot of important work that we can, and should, do together,” Senator John Cornyn of Texas, the No. 2 Senate Republican, said in a floor speech urging everyone to get back to work. “I would ask our friends across the aisle, while they come out on the floor or give news conferences and express mock horror, to tone down the rhetoric and avoid the hypocrisy that seems so apparent when they argue for different standards today than they advocated in the past.”

Senator Charles E. Grassley, an Iowa Republican and the chairman of the Senate Judiciary Committee, cast the presidential election as a referendum on the court.

“Do the American people want to elect a president who will nominate a justice in the mold of Scalia to replace him?” Mr. Grassley asked. “Or do they want to elect President Clinton or Sanders, who will nominate a justice who will move the court in a drastically more liberal direction?”

Mr. Reid replied by speaking about the court vacancy and quoted Senator Mitch McConnell of Kentucky, the majority leader.

“I will never agree to retreat from our responsibility to confirm qualified judicial nominees,” Mr. Reid said, quoting a 2007 floor speech by Mr. McConnell.

The Republicans reiterated that it would not matter who Mr. Obama put forward, Republican or Democrat, no matter how accomplished a jurist — the nomination would be dead on arrival.

The White House on Thursday said that Mr. McConnell and Mr. Grassley had agreed to meet with Mr. Obama to discuss the vacancy on Tuesday. But the Republicans said they would use the session merely to restate their position.

Even as Republicans expressed confidence that there would be little political fallout in November, Democratic challengers across the country began chiding Republican incumbents for refusing to consider a nominee, with particular emphasis on swing states like New Hampshire and Ohio.

Some Republicans said privately that if there was a fight worth losing their Senate majority over, protecting the balance of the Supreme Court was it.

Standing outside the Supreme Court, Senator Patrick J. Leahy of Vermont, the senior Democrat on the judiciary committee, accused Republicans of shirking their constitutional responsibility.

“I have served in the Senate longer than anybody who is here,” said Mr. Leahy, first elected in 1974. “I have never once, never once, whether the Democrats have been in control or the Republicans, whether there is a Democratic president or a Republican president, seen this total abrogation of their duties.”

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