Mitch McConnell Is Already Threatening To Block The Next President’s Supreme Court Nominee Too
Just hours after Justice Antonin Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) announced that he would confirm no one President Obama nominates to fill Scalia’s seat. “This vacancy should not be filled until we have a new President,” according to a statement McConnell released shortly after news of Scalia’s death became public.
Now, however, McConnell appears to be having second thoughts -- not about blocking Obama’s nominee; he’s fully committed to that position -- but about whether it is a good idea to allow the next president to fill the seat either:
MCCONNELL and CORNYN both say they won't even meet with a SCOTUS nominee. McConnell also wouldn't commit to up-or-down vote for next POTUS— Manu Raju (@mkraju) February 23, 2016
That report is from Ian Millhiser at Think Progress, who goes on to point out that quite a few Supreme Court justices are getting along in years, and if enough of them die or retire during the next presidential term and the vacancies aren't filled because the Senate is Republican and the president is Democratic, we may have a Supreme Court that is legally unable to function:
Under federal law, “the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum,” so if four seats become vacant there will no longer be enough justices to form the quorum necessary to decide cases.As Jonathan Chait pointed out over the weekend, that really could happen:
The Constitution’s instructions that the Senate “advise and consent” on nominees to the courts and the executive branch has meant different things at different times. Sometimes, the Senate has given the president wide latitude to appoint justices of a similar bent.... Other times, the Senate has withheld its consent from nominees deemed too extreme -- though no party had yet proposed or adopted blanket opposition to any nominee from the opposing party, until now....I think a Democratic Senate in 2017 would ultimately approve a Republican president's Court nominee, although a pick or two might be rejected first. Or maybe the Democrats would just dig in their heels the way McConnell is threatening to. On the other hand, I strongly suspect that a Republican Senate won't approve a Democratic president's nominees no matter who they are, and no matter how long the seat or seats have remained vacant, a stalemate that could well last for two four-year terms.
A handful of purple-state Republican senators have made conciliatory noises, but it would require 14 Republicans to join with all 46 Democrats to overcome a filibuster of an Obama Court nominee....
If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not -- maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise....
A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly?
So we really might not have a Supreme Court by 2024.
At this point, I don't put anything past Republicans.They care about nothing but power (although I'm sure they'd insist that they only act the way they do because they're the sole defenders of a Constitution that's routinely trashed by the Democrats). Republicans are never punished for this at the polls, because Democrats never directly the blame at the GOP, and mainstream journalists and pundits -- and therefore most voters -- routinely decry partisanship in the abstract rather than Republican intransigence. If the next president is Hillary Clinton or Bernie Sanders, this war is only going to get bloodier. And the High Court really might be as casualty.