FILE PHOTO: Justice Antonin Scalia, courtesy of the Collection of the Supreme Court of the United States
NOTE: This piece was originally released for publication in February 2016. You can also read it here.
RICHMOND — Virginia political analysts say Republicans in the U.S. Senate may have regrets if they refuse to even consider President Barack Obama’s appointment to fill the seat on the U.S. Supreme Court vacated with the death of Justice Antonin Scalia.
The public may see such a move by the GOP as obstructionist and accuse the party of causing gridlock in government, the analysts said.
“President Obama has a constitutional authority to nominate replacements to the Supreme Court. Last I checked, he has a four-year term. He is the president,” said Laura van Assendelft, political science professor at Mary Baldwin College in Staunton. “So for the GOP to say the president shouldn’t do his job — that’s very political, and that may backfire in the public opinion.”
Soon after Scalia, 79, died while vacationing in Texas on Feb. 13, Senate Majority Leader Mitch McConnell declared, “This vacancy should not be filled until we have a new president.” Other senators said the Senate should refuse to hold hearings on whomever Obama may appoint to replace the conservative justice.
A few GOP senators have broken ranks from that view. Sen. Thom Tillis of North Carolina cautioned his Republican colleagues against appearing obstructionist.
Political experts in Virginia said the Republicans’ initial reaction was a gamble.
“It’s pretty extraordinary. … This is a whole new level of gridlock. I think it’s going to be hard to sustain ‘no vote, no hearing’ as an approach,” said Stephen Farnsworth, a professor of political science and international affairs at Mary Washington University in Fredericksburg. “The Republican senators who are up for election are not going to feel like it’s a great idea to risk losing their seats.”
It has been 76 years since a Supreme Court vacancy had a replacement nominated and confirmed in an election year. Such vacancies have rarely occurred during an election year.
Since 1900, there have been only six outstanding vacancies in an election year, and all were filled. Justice Anthony Kennedy, who still sits on the court, was unanimously confirmed during President Ronald Reagan’s last year in office in 1988. (Unlike current circumstances, however, Kennedy was nominated to fill a vacancy that had occurred the previous year.)
“I think it’s very unlikely that Obama is going to get a judge through,” said Bob Holsworth, a leading political analyst and former dean at Virginia Commonwealth University. “And the question is, somebody has to be willing to accept an appointment with a very small chance of being confirmed, and that they’re going to have their entire life history exhumed in the process.”
Holsworth said that with the pressure of congressional elections in November, some Republicans will be concerned about voter response to the hard line taken by the GOP.
“I think politically, it was a mistake,” he said. “They could have achieved the same goal without appearing to be obstructionist about the process.”
Farnsworth agreed that more senators may agree to consider Obama’s nominee to replace Scalia.
“There’s a lot of Republican senators going up for re-election this year in swing states that may find it hard, individually, to not do their job,” Farnsworth said. “States like New Hampshire, Pennsylvania, Ohio, Wisconsin and Illinois — these are all states that Obama carried twice, and they all have Republican senators up on the ballot this year.”
Congress, which saw sweeping gains by Republicans in the 2014 elections, has drawn fire in recent years for obstructionist actions such as the government shutdown in 2013 to protest the Affordable Care Act. That shutdown was orchestrated by Ted Cruz, then a freshman senator from Texas and now a candidate for the Republican presidential nomination.
“The GOP is trying to mobilize their base; they’re trying to tap into anger that the American public has right now,” Van Assendelft said. “I see it as a political maneuver to mobilize their base. Will that work? Will that not work? We have seen recent conflicts between the executive and the legislative, and it does not always work in the favor of the party that launches those attacks.”
Although Obama has not indicated whom he might name to the high course, Attorney General Loretta Lynch and federal appellate Judge Sri Srinivasan have been mentioned as potential appointees. Both are liberal picks who likely would rally Democrat support but face opposition from the GOP.
Farnsworth suggested alternative routes that Obama could use to get a nomination through.
“One would be to select a popular senator, as senators tend to like other senators,” he said. “Another option is an appeals court judge who has already received a lot of support from Republicans in the past. It’s going to look particularly nasty and partisan if somebody who was confirmed 95 to nothing for an appeals court position can’t get a hearing or an endorsement from the Senate a few years later.”
Farnsworth also said that despite talk about Republicans of blocking a hearing, “President Obama will get a hearing for any nominee he puts forward.”
Van Assendelft said public opinion may turn against GOP leaders not only due to perceived obstructionism but for how quickly they rallied against an Obama nomination after Scalia’s unexpected death.
“I feel very bad for Scalia’s family — for the politics of it hitting the media literally before this man was even buried,” she said. “That, I think, is very unfortunate. I don’t think the public appreciates that at all.”