Lacking hard power in the Senate, Democrats try to turn up political pressure on Supreme Court vacancy

REUTERS/Carlos Barria
Even if Democrats in the Senate can’t technically do anything to force their colleagues to consider a Supreme Court nomination, that doesn’t mean they’re going to stand down quietly.

WASHINGTON — What many expected to be a relatively quiet year in the U.S. Senate got nasty in a hurry with the sudden death of Supreme Court Justice Antonin Scalia.

Senate Republican leaders have said they will reject whomever President Barack Obama nominates to fill the court vacancy without so much as a committee hearing. Their case is that, with 11 months to go in the Obama presidency, the next presidential election should determine the person who gets to fill the spot on the bench.

Senate Democrats, of course, do not agree. But they have a small problem: They’re outnumbered, pretty decisively. It’s tough being the minority party in the Senate — from scheduling committee hearings and votes to deciding what makes it to the floor, the majority party sets the agenda. And in the matter of Supreme Court nominations, the majority has made it clear that it won’t be having any of that.

But even if Democrats in the Senate can’t technically do anything to force their colleagues to act, it doesn’t mean they’re going to stand down quietly. Back-to-back events hosted by Minnesota’s senators on Wednesday gave a sense of how the party will try to win the messaging war against Republicans.

Franken: The people want (a) justice

Kicking it off was Sen. Al Franken, who headlined a Wednesday press conference that illustrates one prong of the Democrats’ effort to win in the court of public opinion: making the case that ordinary Americans, not just Democratic lawmakers, are angry that Republicans are refusing to consider a nominee.

“Today we’ve announced that 1.3 million Americans have already signed a petition that we must take action,” to consider a nominee, Franken said, gesturing to a pile of file boxes at his side symbolizing the signatures.

Standing around the boxes were members of leading progressive groups like MoveOn, the Progressive Change Campaign Committee, and Daily Kos, all holding signs reading: “Americans to Senate Republicans: Do your job.”

Flanked by the activists as well as New York Sen. Chuck Schumer and other senators, Franken hit at the GOP’s case in a brief speech. “The American people should have a voice in the selection of their next Supreme Court justice,” Franken said. “The only problem is the American people have spoken twice.”

“Barack Obama was elected and re-elected by a resounding majority of American people who correctly understand that elections have consequences, not the least of which is when a vacancy occurs, the president of the United States has the constitutional responsibility to appoint justices to the Supreme Court.”

Franken hammered Majority Leader Mitch McConnell, facetiously suggesting the Kentuckian should work on passing a constitutional amendment declaring that Obama’s term be cut short by 11 months.

“We need to do our jobs,” Franken concluded, “and the majority leader needs to do his.”

Klobuchar convenes constitutional scholars

Later Wednesday afternoon in a Senate hearing room, Sen. Amy Klobuchar aimed to underscore another element of the Democratic argument: that obstructing the Supreme Court confirmation process is unprecedented and even unconstitutional.

To that end, Klobuchar invited four constitutional law professors from Georgetown University, Columbia University, the University of North Carolina, and her own law school alma mater, the University of Chicago, to make the Democrats’ case from a legal perspective.

As about a dozen Democratic senators came in to participate, including Franken and Massachusetts Sen. Elizabeth Warren, Klobuchar struck a tone more academic than political in her opening remarks. “We value the court’s distinct insulation from public opinion. What we’re here to talk about is what the Constitution says,” Klobuchar said.

The language of the text, she said, is pretty plain: “We now have a vacancy, and the Constitution is very clear, where it says that the president shall nominate, and it says the Senate’s role is to advise and consent.”

Establishing a recurring theme, Klobuchar said that leaving a Supreme Court seat vacant until a new president’s election would be a historical aberration. “When you look throughout history, you have to go back to the Civil War to a time when a position was left open for over a year,” she said, adding that the average time from nomination to confirmation for justices since 1975 has been 67 days.

“Our colleagues on the other side of the aisle are talking about holding this up for well over a year,” Klobuchar said. “This is unprecedented and against the clear words of the Constitution.”

The professors gave brief statements, academically explaining why the Democrats are correct and the Republicans are not. Peter Edelman, a law professor at Georgetown University, said the current situation dramatizes how Republicans are “undermining the very structure of democracy.”

“The nomination and confirmation of a Supreme Court justice is one of the most important responsibilities the other two branches have in our constitutional structure,” Edelman said. “For one of the major parties in our country to thumb its nose at that responsibility is to strike a blow at the heart of the idea of checks and balances.”

Will it work?

Taken together, these two events reflect the essence of how Democrats are trying to win this battle, armed with claims to have the people and the Constitution on their side.

Will it work? Despite McConnell’s insistence, Democrats believe the GOP will eventually cave. Chuck Schumer, Senate Dems’ messaging chief, has said this battle will end like the government shutdown fights, the battles over Obama’s executive actions and the Iran deal — all times when the GOP drew a hard line but ultimately compromised under political pressure.

But if Republican brass is swayed, it probably won’t be because they suddenly agree with Democrats’ interpretation of the Constitution: Republican senators up for re-election are concerned with how the Supreme Court battle will affect their chances in November. One particularly vulnerable incumbent, Mark Kirk of Illinois, has openly bucked McConnell’s strategy, saying the Senate has a duty to at least consider an Obama nominee.

The White House appeared eager to test the limits of the GOP’s strategy: The Washington Post reported on Wednesday that the administration was considering Brian Sandoval, the moderate Republican governor of Nevada, for the Supreme Court bench. (Sandoval has since withdrawn himself from consideration.)

Responding to the Post’s Sandoval news, Franken told MinnPost he would consider the Republican like any other nominee, regardless of party.

“I would have to ask them questions and do the same process I’d do with anyone,” Franken said. “We’ve had some Republicans who’ve sat on the court and been excellent justices.”

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Comments (6)

  1. Submitted by Craig Johnson on 02/26/2016 - 11:12 am.

    Be careful of what you ask for

    Led by McConnell, the oppositional Republican Party, perhaps in their last death rattles, promises to not address the vacancy and defer until a new President in elected. My take is considering the shambles the party is in they will probably lose control of the Senate, possibly lose control of the House, and undoubtedly fail to win the Presidency.

    This leaves the potential for a truly progressive nomination to come forward and sail quickly through the Senate. The only downside is that we will have cast a shadow on any decisions made by an understaffed court. This downside is monumental and should not be permitted to happen. We, as citizens need to have full confidence in the court. Republican tactics seem driven to undermine this important facet.

    Looking to the future has not seemed to be a critical concern of our contentious congress. Thats a shame. Divisiveness seems to emerge simply for its own sake. While opinions matter, calcified and uninformed opinion seems to find an easy path to the public marketplace of ideas. Fair and balanced has morphed into corralling an extreme right to be balanced by an extreme left. Balance really is not served by shrill voices. Balance is an inner core, personal understanding that knowledge, consensus and thoughtful moderation brings us to effective solutions.

    We have become a celebrity led culture. Keith Olbermann used to represent the Left, and Rush Limbaugh provided balance on the Right. We seemed to be sucked in on the rigid simplistic arguments they brought forth. Trump has a significant following, and has brought the theater of Professional Wrestling to the political stage. But has put forth no detailed positions other the “it will be awesome” as an explanation. Likewise Bernie Sanders has only prepared a PowerPoint bullet explanation of his Health Care proposal. Right or Left we deserve and must demand a comprehensive explanation.

    At this point I have only adequate information to make a judgement on who not to vote for.

  2. Submitted by Frank Phelan on 02/26/2016 - 12:37 pm.

    Wha? Huh?

    GOP in its “death rattles”. Do you have any idea how many of the 50 governors are Republicans? Do you have any idea how historically large the House GOP majority is? Do you have any idea how many state legislative bodies are majority GOP?

  3. Submitted by Dennis Tester on 02/26/2016 - 12:43 pm.

    Why are the democrats

    so insistent on denying Hillary Clinton the opportunity to appoint Scalia’s replacement? Surely, she would relish the opportunity.

  4. Submitted by Connie Sullivan on 02/26/2016 - 01:35 pm.

    I think that the best the Democrats can do now is show–again and again–that the Democrats and some anguished Constitutional Republicans are the adults in the room. That is what Sens. Franken and Klobuchar (both of whom are on the Senate Judiciary Committee) are doing, calmly and competently, emphasizing two relevant features of our representative democracy: the force of election results (four-year presidential terms) and Constitutional provisions that demand action by the Senate on a President’s Supreme Court nominees.

    We Americans are smart enough to know that the Senate doesn’t have to approve a nominee. But we know they have to do their job, which is to consider the nominee, formally and expeditiously.

    • Submitted by John Appelen on 02/26/2016 - 03:44 pm.

      Carts and Horses

      It seems to me that folks here are putting the carts before the horse. And since the more Liberal voices on MP keep saying that the GOP are the obstructionists. Let’s have Obama actually nominate a Conservative Justice like Scalia so the court stays balanced.

      And if the GOP doesn’t accept the nomination we will know they are being obstructionist and that the Democrats were truly willing to negotiate. (ie Dems get a fully staffed court and GOP gets a Justice they approve of)

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