We began discussing this last night when the tragic news broke about the death of Justice Scalia, and as predicted the question has caught fire already. The President already said he will be nominating someone, but will the Senate take up the question while he is still in office? We have the answer from several presidential candidates already and one of them is Jeb Bush. It’s really not that important to him.
JEB BUSH: I think President Obama is going to submit a nominee and in all likelihood this person will be out of the mainstream and he’ll be rejected by the Senate. That’s his prerogative. He has every right to do it, and the Senate has every right not to confirm that person. That’s what I said. He clearly has the power to do it, but given his choice of Supreme Court justices in the past the Senate of the United States should not confirm someone whose out of the mainstream.
DANA BASH: But if I could just clarify, right now it sounds as though…
JEB BUSH: Yeah.
DANA BASH: …the Republicans who run the Senate aren’t even going to schedule a vote. You think that one should be scheduled?
JEB BUSH: It’s up to Mitch McConnell. That’s really not important to me.
That was a rather telling moment, particularly given that he’s had a full night to think it over. The question is actually going to be of extreme interest to everyone voting in the GOP primary if I’m any judge of things. There were multiple discussions on the logistics of failing to vote on a nominee as well as the political fallout going on this morning. Jake Tapper, responding to our colleague Hugh Hewitt, offered one observation as to how Republican Senators and GOP candidates for those offices would be impacted.
.@hughhewitt: GOP senators in blue states may lose reelection opposing Obama push for SC nominee but if they join Dems they will def lose
— Jake Tapper (@jaketapper) February 14, 2016
There were multiple people hitting Hugh on how the Senate was “obligated” to bring the nominee up for a vote. Hugh, himself a professor of constitutional law, was having none of it.
Preisdent can nominate. Senate chooses whether to confirm. That's it. That's the Constitution. Read it. https://t.co/XGTMguDBfR
— Hugh Hewitt (@hughhewitt) February 14, 2016
Hugh was on the Sunday morning roundup going into even more detail. (Daily Caller, with video at the link)
“If I were a Republican — whether the Majority Leader all the way down to the county clerk — and every nominee I would say no hearings. No votes. Lame ducks don’t make lifetime appointments.”
“There is no precedent,” he continued. “And I will simply add, the base will not forgive anyone. Senators will lose their jobs if they block the blockade. There should be an absolute blockade on this.”
That’s going to be a common sentiment in Republican circles, but I’m not at the point where I’m ready to call it a done deal. First of all, the Democrats and their allies in the media will be pouring on the heat in nearly unprecedented fashion to force a vote. In order for the “blockade” Hewitt references to hold, both Chuck Grassley and Mitch McConnell will have to maintain stiff spines for nearly a solid year. Now let’s say they both caved and it came to a floor vote. Look over the list of members for a moment and tell me if you don’t think the Democrats could come up with roughly a baker’s dozen Republicans who would vote to confirm an Obama nominee. But then again, I suppose I’m just a bitter old skeptic.
On the matter of the rules, the Constitution is absolutely clear on this one, though some Democrats suddenly seem to have trouble reading the text. The President is entitled to nominate a replacement justice as soon as he likes and nobody can legally stop him. Then, in their advise and consent role, the Senate will take up the question. There is no time limit mentioned in the Constitution as to how long that might take. Under current Senate rules the nomination must first make it out of Chuck Grassley’s committee and then Mitch McConnell would need to schedule it for a vote before that takes place. And if it takes a long time to get that done, the only people who the Senators answer to are the ones who elect them.
Sorry, Democrats, but that’s pretty much the end of the story.