On Monday, Sen. John McCain (R-AZ) confirmed one of Democrats’ worst fears. If Democratic presidential candidate Hillary Clinton wins the White House, but Republicans keep the Senate, the GOP “will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.”
If America wants to have a Supreme Court in five years, in other words, it better elect the same party to the White House and the Senate.
Not long after McCain’s comment, however, a new talking point was born. McCain’s own spokesperson said McCain did not actually mean what he said. The senator will “thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications,” according to his communications director Rachael Dean. Though Dean also added that “McCain believes you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees.”
At least three key senators have now picked up on this two-part message that 1) Republicans won’t just reject any old person Hillary nominates, but 2) we don’t like the kind of people she would actually want.
Sen. Chuck Grassley (R-IA), currently the chair of the Judiciary Committee, told reporters on Tuesday that “we can’t just simply stonewall” Clinton’s nominees, but “the type of people she’s going to appoint, I would say they are judicial activists.”
Sen. Orrin Hatch (R-UT), himself a former Judiciary Chair, echoed Grassley. His chief of staff told the Salt Lake Tribune that “close scrutiny of any future Hillary Clinton nominee will be particularly critical since she has advocated shifting the court to the left.”
Sen. Mike Lee (R-UT), arguably the most conservative member of the Senate, said that “of course we will look at anyone who might be nominated by the next president,” but “whether that nominee will be confirmed is an entirely different question.”
So Republicans don’t want to be perceived as prejudging Clinton’s nominee, and they appear unlikely to repeat their treatment of President Obama — refusing even give the nominee a hearing, much less a vote. But at the same time, they’ve emphasized their ability to block nominees after that nominee receives the trappings of a confirmation process. And many Republicans have criticized Clinton for wanting to appoint the kind of nominees that she actually wants to see on the Court.
The open question, in other words, is whether anyone Hillary Clinton would view as an acceptable justice would also be acceptable to enough Republican senators to get that potential justice through the Senate. If Republicans keep control of the Senate, it is very likely that the answer to that question is “no.”
In 2010, only five Republican senators voted to confirm Justice Elena Kagan, a conventional Democratic nominee. Of those five, just two, Sens. Susan Collins (R-ME) and Lindsay Graham (R-SC), are still in the Senate. One of them, Sen. Dick Lugar (R-IN) lost his seat in a primary after Republican interest groups, including the National Rifle Association, ran ads attacking Lugar for supporting “both of Barack Obama’s anti-gun nominees to the Supreme Court.”
It’s notable that back in 2010, when much less was at stake, there was already only a small group of GOP senators willing to incur the wrath of the NRA. Kagan replaced left-leaning Justice John Paul Stevens, and her appointment did not endanger the Court’s conservative majority. Clinton’s first nominee, by contrast, would fill the late conservative Justice Antonin Scalia’s seat and give liberals a majority for the first time in nearly half a century.
It’s also worth noting that, while current Senate rules allow lower court judges to be confirmed by a simple majority, Supreme Court nominees can still be filibustered — effectively preventing their confirmation unless a 60-vote supermajority consents. That means that, if Republicans retain just 51 seats in the new Senate, 11 of these Republicans will most likely be needed to confirm a new justice to the Supreme Court.
And will nearly a dozen senators feel comfortable risking the fate of Dick Lugar? Probably not.