Shortly after news broke last weekend about the death of conservative Supreme Court Justice Antonin Scalia, Senate Majority Leader Mitch McConnell issued a statement taking a stand against the confirmation of an Obama nominee to replace him.
"Today our country lost an unwavering champion of a timeless document that unites each of us as Americans. Justice Scalia's fidelity to the Constitution was rivaled only by the love of his family: his wife Maureen his nine children, and his many grandchildren. Through the sheer force of his intellect and his legendary wit, this giant of American jurisprudence almost singlehandedly revived an approach to constitutional interpretation that prioritized the text and original meaning of the Constitution. Elaine and I send our deepest condolences to the entire Scalia family," McConnell released in a statement. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”
To be clear, McConnell did not say Obama doesn't have the authority to nominate a replacement, he's simply execising the constitutional authority of the Senate to deny a nominee.
For days now progressives, including Democrat Presidential candidate Hillary Clinton, have been 1) accusing Republicans of denying Obama's constitutional authority to appoint a replacement 2) demanding the Senate has an obligation to hold hearings for a nominee 2) demanding the Senate has an obligation to give Obama's nominee a vote 3) demanding the Senate has an obligation to confirm Obama's nominee. None of these things are true. The Senate has no constitutional obligation to hold hearings for a nominee or to confirm any president's pick.
But regardless of McConnell's tough stance, which requires a refusal for hearings and a refusal to bring a vote to the Senate floor in order for the next President to choose Scalia's replacement, there seems to be some rumblings from the Judiciary Committee about potentially holding hearings after all, depending on who Obama chooses. From the Washington Times:
Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican, didn’t rule out confirmation hearings and a vote by his panel on an Obama selection.
“I would wait until the nominee is made before I would make any decision,” Mr. Grassley said Tuesday in a conference call with Iowa radio reporters. “In other words, take it a step at a time.”
Asked whether he thought the controversy over filling the court vacancy might endanger his re-election chances this fall, Mr. Grassley said, “I think I have a responsibility to perform, and I can’t worry about the election. I’ve got to do my job as a senator, whatever it is. And there will be a lot of tough votes between now and the next election.”
His comments appeared to be a softening from a statement shortly after Justice Scalia’s death, when Mr. Grassley said it was “standard practice” not to nominate or confirm candidates for the Supreme Court in an election year.
“It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice,” Mr. Grassley said in a statement Saturday.
There are major political risks at stake here. (1) If McConnell chooses to block a nominee from receiving a vote on the floor, he will surely be accused of racism or sexism should Obama nominate a minority or a woman to fill Scalia's position. On the other hand, he'll be praised by the conservative base in an election year. If he caves (which at this point there is no indication he will), the conservative base will again, be in full revolt of Washington politics.
(2) If Grassley chooses to hold hearings, he might be seen by independent voters as reasonable in an election year. The problem comes if Obama nominates a somewhat moderate nominee and if they give coherent, non-radical answers during hearings, the general public will see a blocking of that nominate as a pure political play. Again as already mentioned, if the nominee gets a vote, the conservative base will be up in arms. Hearings could also create a split between Republicans in the Senate, who are concerned about looking extreme in an election year.
We'll see where things go...