Sen. John McCain (R-Ariz.) may have backed off a bit on his promise this week to hold up whoever Hillary Clinton would nominate to the Supreme Court if she became president. But there is no legal reason he has to.
Senate Republicans could conceivably hold up a Supreme Court nominee indefinitely, legal scholars tell me. And it’s possible that if Clinton wins next month, they would consider doing just that.
We have actually been over this before. The night Justice Antonin Scalia died in February, Russell Wheeler with the Brookings Institution pointed out that there’s nothing in the Constitution that says the Senate has to confirm, or even consider, the president’s nominee.
(The Constitution says the Senate “shall advise” the president, which over time we’ve taken to mean will approve or disapprove of. But despite precedent, Wheeler says there are very few courts that would interpret “shall” as “must.”)
So while holding up a Supreme Court nomination might be contrary to the way we’ve done things for decades, there’s nothing in our rule book that would stop Senate Republicans from doing it. President Obama’s nominee Merrick Garland holds the record (by almost 100 days) of the longest wait for his nomination: 216 days and counting. As incensed as Democrats may be about that, they can’t really file a lawsuit or anything to try to get Republicans to consider Garland.
Republicans can keep up the blockade when there’s a new president (and likely a new Supreme Court nominee) too, Wheeler says. They could do it if they held onto the majority, and they could do it if Democrats take control of the Senate with a thin majority, which would allow Republicans to blockade the 60 votes it will take to approve a Clinton nominee. Clinton could, in theory, appoint a Supreme Court nominee while the Senate’s on a break, but if Senate Republicans were in the majority, they could prevent a break from ever happening.
And don’t count on Republicans nominating Garland after the election on a lame duck session. Even Senate Minority Leader Harry Reid (D-Nev.) thinks that’s unlikely.
That’s because the same calculations driving the current impasse would apply in the event of a Clinton win. (The current official GOP rationale — the need to wait for the election of a new president — would disappear. The political realities wouldn’t: replacing one of the court’s most conservative justices in recent history with a moderate or liberal one isn’t the sort of Senate accomplishment a Republican incumbent would look forward to explaining to base voters back home.)
On the other hand: just as we could envision a world where the Supreme Court goes years with eight justices, we could envision a world where Republicans get punished at the ballot box for it.
Right now, the average voter doesn’t seem to care much about the GOP blockade — at least, not enough to boot Republicans out of office for it. And so the Supreme Court vacancy has pretty much faded from Senate Democrats’ campaign strategy. But that could change if days stretch into years without a ninth Supreme Court justice. (There is a law that says there will be nine justices, but it’s been followed loosely. The court has sat with six, seven, even 10 justices at different points in history. )
Americans’ apathy is in spite of the fact the current court has already opted not to take up some pretty big decisions, from President Obama’s immigration reform to teacher’s unions. Some of those non-decisions favored Republicans, others Democrats. But could you imagine another few years of deadlocked or non-decisions? That’s objectively unsatisfying — and it’s possible Americans might start to care about how many justices are on the Supreme Court.
Then, if there were other vacancies opening up during President Clinton’s presidency — two justices are 80 or over right now — Republicans would have a harder time justifying a blockade of multiple nominees.
There is one surefire way Democrats could short-circuit a Republican Supreme Court blockade: Go nuclear — specifically, to change the rules (again) regarding how the Senate approves judicial nominations. In 2013, Senate Democrats changed the filibuster rules so that just a simple majority is needed to confirm most judicial nominations. But they left Supreme Court justices to the original 60-vote threshold. The outgoing Harry Reid has floated the possibility of lowering the bar to confirm Supreme Court justices. But he’ll be retired come January 2017, and his likely replacement, Sen. Chuck Schumer (D-N.Y.), doesn’t seem to want to go that far yet.
“I hope we won’t get to that,” Schumer told CNBC’s John Harwood. “And I’ll leave it at that.”
Which means that McCain is right: Senate Republicans can block a Supreme Court nominee for as long as they want. The question now becomes whether they’re up for it.