WASHINGTON — Louisiana’s two Republican U.S. senators are totally on board with the Senate GOP’s stance of refusing to allow a vote or even a hearing on President Barack Obama’s nominee to fill the vacancy on the U.S. Supreme Court.
The state’s senior senator, David Vitter, joined the U.S. Senate Judiciary Committee’s 10 other Republican members in a letter released Tuesday saying the vacancy created by the death of Justice Antonin Scalia should be filled by the next president, not Obama.
U.S. Sen. Bill Cassidy echoed Vitter’s position.
“The American people have the opportunity in November to vote on which direction our country should go in,” Cassidy said in a statement. “Let the people decide.”
Senate Majority Leader Mitch McConnell, R-Ky., told reporters that all 54 Republican senators agree with the position.
Obama has said he will nominate a successor to Scalia “in due time.” He will meet at the White House this Tuesday with Senate leaders, including McConnell and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and their Democratic counterparts.
The Republican stance raises the political stakes on what was already likely to be a hard-fought battle on filling a seat on a closely divided Supreme Court. Scalia’s death leaves the conservative bloc one vote short of the narrow majority that has upset campaign finance laws, weakened the federal Voting Rights Act and established individual gun rights under the Second Amendment.
Obama has named two justices who help form the four-vote liberal bloc: Sonia Sotomayor and Elena Kagan. Along with the Republican-appointed moderate conservative Anthony M. Kennedy, they have formed a five-vote majority in some key cases, including the ruling in June 2015 to guarantee marriage rights for same-sex couples.
If Obama chooses a liberal nominee who goes on to win confirmation, the court would have a liberal majority for the first time since the early 1970s.
Vitter cited the risk of changing the court’s ideological balance of power. “I think it’s safe to say that he won’t pick a strict constructionist like Justice Scalia,” Vitter said in a statement released Friday.
Senate Democrats have countered the Republican position by adopting the mantra: “Do your job.” They tried out the message first at a session with reporters at the Capitol on Tuesday and then in a photo op on the steps of the Supreme Court plaza the next day.
In Louisiana, state Sen. Karen Carter Peterson, of New Orleans, chairwoman of the state’s Democratic Party, adopted the same line.
“It’s interesting from strict constitutional constructionists that ... they would make statements saying that they are not willing to fulfill their constitutional obligations,” Peterson said. “They have a responsibility to do their job.”
At the U.S. Capitol, Sen. Minority Leader Harry Reid, D-Nev., predicted the Republicans would fold. “I believe Americans will not stand for this,” he said. Democrats and liberal groups are planning to air ads urging a vote on Obama’s eventual nominees in McConnell’s and Grassley’s home states and in half a dozen or more states with Republican senators that Obama carried in his two elections.
Given Obama’s unpopularity in Louisiana, Vitter and Cassidy “will not pay any political price” for their position, according to Pearson Cross, a political scientist at the University of Louisiana in Lafayette. “I don’t think there is any particular pressure to get them to change their position,” Cross said.
Vitter is retiring this year after serving two terms in the Senate; Cassidy will be up for election in 2020.
Appearing on Fox Business Channel, Vitter said he was “very, very confident” the Republicans would stick to their guns. “I think a clear majority of the American people want to be in charge through the presidential election,” he said.
A poll by the nonpartisan Pew Research Center in Washington, however, found 56 percent of those surveyed nationally were in favor of holding a hearing and vote on an Obama nominee, compared with 38 percent opposed. The results divided sharply along partisan lines. Democrats favored a hearing and vote by a 79-17 margin, while Republicans opposed a hearing until the next president takes office by a 66-29 margin. Forty-four percent of Republicans said they would not change their mind depending on whom Obama nominates.
The U.S. Constitution specifies that the president “shall nominate, and with the advice and consent of the Senate, shall appoint” members of the Supreme Court, other federal judges and executive branch officials. A simple majority is required.
Explaining the Republicans’ position, McConnell said the Senate was exercising its constitutional power to “withhold consent.”
The confirmation process for Supreme Court justices has often been politically treacherous, but the current practice of televised confirmation hearings with testimony from the nominees and public witnesses dates only from the 1960s. In the 19th century, the Senate debated nominees behind closed doors in order to ensure candor.
Many Republicans and conservatives are still bitter about the Democratic-controlled Senate’s rejection of President Ronald Reagan’s nomination of Robert Bork in 1987. Kennedy, Reagan’s third choice for the seat, won unanimous confirmation in February 1988 as Reagan was beginning his final year in the White House.
Democrats, though, say the Republicans’ refusal even to consider an Obama nominee is unprecedented. They note that at least 14 Supreme Court nominees, including most recently Kennedy, won confirmation in the final year of a presidential term, though not necessarily a president unable to run for re-election.
Other 20th century justices nominated and confirmed in presidents’ last year in office include Frank Murphy, a liberal appointed by President Franklin D. Roosevelt in 1940; Benjamin Cardozo, a respected, somewhat liberal New York judge chosen by Herbert Hoover in 1932; two justices named by Woodrow Wilson in 1916, liberals Louis D. Brandeis and John H. Clarke; and the conservative Mahlon Pitney, named by William Howard Taft in 1912.
Despite those precedents, Republicans have a point in noting the long-term impact of Supreme Court appointments even by a president headed out of office.
In the most important episode, John Adams appointed and the Senate confirmed the great chief justice John Marshall in 1801 after Adams had lost re-election to Thomas Jefferson. Marshall served for 34 years, fortifying the powers of the national government in ways that distressed Jefferson and other states rights-minded politicians.
Out of 154 Supreme Court nominations in all, 29 failed to win Senate confirmation. Partisan politics more than legal ideology was the major factor in the 22 unsuccessful nominations from the 1790s through 1900.
Six nominations failed in the 20th century, including Bork’s, all after battles fought in part over legal ideology. Republicans blocked a Senate vote in 1968 on President Lyndon B. Johnson’s nomination of sitting Justice Abe Fortas to be chief justice because of a combination of ethics issues and Fortas’ liberal views.
Most recently, President George W. Bush’s nomination of his White House counsel Harriet Miers in 2005 ended in embarrassment when she withdrew for lack of support from Republicans and conservatives.
Obama would face a difficult task in winning confirmation for his nominee even if Republicans were to relent and allow a hearing and vote. The four 21st century confirmation votes have all been divided along partisan lines. John Roberts won confirmation as chief justice in September 2005 despite no votes from 22 Democrats, including Obama, then in his first full year as a Illinois senator. Justice Samuel A. Alito Jr. was confirmed by a 58-42 vote in January 2006, with Obama again voting no.
With a Democratic-controlled Senate, Sotomayor won confirmation with 31 Republicans voting against her; Kagan was confirmed with 37 no votes from 36 Republicans and one Democrat. Vitter voted against both Sotomayor and Kagan. His then colleague, Democrat Mary Landrieu, voted yes.
To try to ease the confirmation route, Vice President Joe Biden said that some of those under consideration by Obama are federal judges already confirmed by the Republican Senate for lower courts. Among those on various short lists were Sri Srinivasan and Patricia Millett, both of the federal appeals court for the District of Columbia; Jane Kelly, an Iowan who sits on the federal appeals court headquartered in St. Louis; and Paul Watford, a judge on the 9th U.S. Circuit Court of Appeals, which covers nine Western states. If chosen, Srinivasan would be the first Asian-American nominated for the court; Watford is African-American.
In a curious episode, there was a 24-hour boomlet last week for Brian Sandoval, Nevada’s centrist Republican governor, who gave up a federal judgeship in 2009 after four years to run for the position. The leak was widely seen as designed to put Republicans in a tough spot.
“I’ve said very clearly that I think we should put it in the hands of the American people through the election process, and that’s irrespective of who President Obama’s nominee is,” Vitter said.
Kenneth Jost is a legal affairs journalist in Washington and author of the annual series Supreme Court Yearbook. For more coverage of Louisiana state government and politics, follow our Politics blog at http://blogs.theadvocate.com/politicsblog .