About an hour after the death of Supreme Court Justice Antonin Scalia was announced on Saturday, Senate Majority Leader Mitch McConnell made an unprecedented declaration. Everyone knew he’d do everything in his power to prevent President Obama from placing a new justice on the Court, but he didn’t even try to play coy. “The American people should have a voice in the selection of their next Supreme Court Justice,” he said. “Therefore, this vacancy should not be filled until we have a new president.”
While many Republicans, including those running for president, were quick to agree with that sentiment, now some are openly disagreeing with McConnell’s plan — or a least his decision to make their obstructionist intentions known to the world.
The most significant defection came from Judiciary Committee Chairman Chuck Grassley, whose panel would hold confirmation hearings and vote on whether to let the full Senate consider Obama’s nomination. On Saturday, the Iowa senator stood firm with McConnell, saying, “Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
However, Grassley softened his stance in an interview with Iowa radio reporters on Tuesday, possibly because he’s up for reelection this year and the Des Moines Register just published an editorial criticizing his position. Grassley said he would still prefer to see Obama’s successor make the pick, but he won’t rule out holding confirmation hearings for an Obama nominee. “I would wait until the nominee is made before I would make any decision,” he said. “In other words, take it a step at a time.” He denied the shift has anything to do with his reelection prospects, saying he has a “responsibility to perform” and must “do my job as a senator.”
Senator Thom Tillis, another Republican member of the Judiciary Committee, had a more bizarre justification for opposing McConnell: What if Obama nominates someone just as conservative as Scalia? “That’s unlikely to happen, but I think we fall into the trap if we just simply say ‘Sight unseen,’ we fall into the trap of being obstructionist,” Tillis explained on a North Carolina radio show.
He added that if Obama happens to go with a judge who doesn’t oppose everything he stands for politically, “then we’ll use every device available to block that nomination, wait till the American people voice their vote in November and then move forward with the nomination after the election.”
Several other GOP senators seemed eager to avoid being labeled obstructionists in an election year. They argued there’s no harm in letting the process move forward, particularly because there’s almost no chance that 14 Senate Republicans will side with Democrats to overcome the inevitable filibuster of Obama’s nominee. “However it plays out I will fulfill my constitutional role in voting” on the nomination, Senator Ron Johnson, who faces a tough election in the fall, told Politico. “I don’t think anybody said we are not going to do anything. They are going to wait to see what the next step is.”
When asked to give his position, Republican Senator Bob Corker merely stated the facts of the situation, which some of his colleagues are choosing to ignore: “The president has the right to nominate a Supreme Court justice, and the Constitution gives the Senate the power to decide whether to confirm the nominee.”
Democrats are already attacking Republicans for refusing to do their Constitutional duty (in a Washington Post op-ed Senate Minority Leader Harry Reid warned that if Republicans follow McConnell’s plan, “they will ensure that this Republican majority is remembered as the most nakedly partisan, obstructionist and irresponsible majority in history”). Some are also urging Obama to select a moderate, so Republicans will look even more ridiculous when they refuse to confirm them.
Addressing the situation during an unrelated press conference on Tuesday afternoon, President Obama offered few clues about who he might nominate, or his timeline. He said he’s looking for someone who’s “indisputably qualified for the seat,” and who “any fair-minded person, even someone who might disagree with my politics, would say would serve with honor and integrity on the court.”
He went on to rib Republicans for suggesting that there’s some historical precedent for leaving Supreme Court seats vacant in election years, saying, “I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it provisions that are not there.”
But he also acknowledged that’s now part of the political game, citing his participation in the filibuster of the nomination of Justice Samuel Alito in 2006. “I think what’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party,” he said, adding, “What is also true is Justice Alito is on the bench right now.”