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

There’s not much Senate Democrats can do to force Republicans to consider a Supreme Court nominee — but that doesn’t mean they won’t try.

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.
REUTERS/Carlos Barria

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.

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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.”