Politics & Policy

Senate Republicans Dig In for SCOTUS Fight Despite Political Risks

Senate minority leader Harry Reid (Alex Wong/Getty)

It took mere minutes after news broke of Justice Antonin Scalia’s death for Republicans and Democrats to draw their battle lines, and they’ve only dug in their heels in the one week since. With the lion’s share of Republicans, even those whose seats are most vulnerable in November, standing firmly behind Senate majority leader Mitch McConnell’s pledge to block any nominee submitted by President Obama, both sides are preparing for the political fallout to come.

A growing number of lawmakers and onlookers are wondering whether Senate Democrats will begin to employ obstructionist tactics of their own in response to McConnell’s stand. Those tactics could include stalling key pieces of conservative legislation, along with reneging on their commitment to consider appropriations bills from the House under the terms of the budget deal negotiated between Obama and then-speaker John Boehner last October. But even without resorting to such measures, Democrats could ensure that McConnell’s refusal to hold a hearing threatens the pragmatic image that vulnerable Republican senators have sought to maintain, making the fight a referendum on the majority leader’s reign itself.

According to one senior GOP aide, staff-level conversations have already begun on how to keep the Senate functioning until November. “The biggest challenge, obviously, is going to be funding the government if [Harry] Reid doesn’t let anything go forward, which is something Republicans would inevitably be blamed for,” the aide says. “Discussions will start back in earnest among members on Monday.”

“The floor is already being slowed down in many ways,” says Senator Orrin Hatch, who is “optimistic” that Reid won’t try to shut down the floor when Republicans hold firm against Obama’s nominee. But Hatch remains prepared for the worst. “Reid can do whatever he wants. They’re already blocking everything anyway. What else is new?”

RELATED: Republicans Shouldn’t Fear a SCOTUS Fight

“Senator Reid has been known not to follow commitments he’s made,” says Senator Jeff Sessions, who serves with Hatch on the Judiciary Committee. “No one has been more aggressive in advancing partisan politics than Senator Reid.”

Senator Mike Lee, another Judiciary Committee member, believes fear of Reid’s retaliation may be exaggerated. “If I had to guess, I don’t think this has to be a reason to stop everything.” He cites a bipartisan criminal-justice reform package currently moving through the Senate as an example of legislation that will maintain momentum even if the nomination fight gets rough. “When it comes to bipartisan efforts like criminal-justice reform, I don’t see Reid trying to stop them.” 

#share#Overblown or not, the specter of Reid’s obstructionism could further complicate the budget negotiations in the House, already on shaky ground. House leadership’s argument for passing a budget that adheres to the Obama/Boehner deal has largely centered on Reid’s implicit pledge not to filibuster House appropriations bills in the upper chamber. Several conservatives are already incensed at the thought of yielding negotiating power to the Senate. They have argued that leadership must craft a “Republican budget” on the House’s own terms. Now that Reid’s commitment is being further questioned, those calls are likely to intensify.

“It was always likely Harry Reid would find a way not to meet his end of the deal,” says House GOP policy chairman Luke Messer. “So, of course, he may use the SCOTUS controversy as his excuse, but one way or another, he was likely to find an excuse.”

RELATED: After Obergefell, the Senate Is the Last Line of Defense Against Judicial Tyranny

When presented with the question at an event in Reno last week, Reid acted bemused. “I had someone ask me, ‘Are you going to shut down the Senate if they don’t allow this?’” he said. “And I said, ‘There’s no reason to shut anything down; we’re not doing anything anyway.’”

Beyond the uncertainty of future legislative business, McConnell must also contend with the potential ramifications of a sharp detour in political strategy. Until Scalia’s death, McConnell had sought to chart a low-profile course this term, hunkering down into a defensive crouch he hoped would protect his majority in November. So his call to block any Obama nominee was striking not just for how quickly it came, but also for how much it seemed to fly in the face of his preferred modus operandi.

Now that McConnell has stuck his neck out, there can be no going back. The DSCC has already launched fundraising appeals off of the majority leader’s blockade, arguing that his “political move” put the GOP’s “most vulnerable incumbents in no-win positions.” Liberal activist groups have also pounced. People for the American Way blasted out robo-calls in Wisconsin last week, urging voters to call out Republican Senator Ron Johnson — who faces a tough reelection bid — for “playing politics with our Constitution.”

RELATED: The Future of the GOP Hangs in the Balance in the Coming Supreme Court Fight

It’s a spotlight McConnell never wanted in an election year. But in order to protect vulnerable incumbents such as Kelly Ayotte, Rob Portman, and Pat Toomey from charges of partisan pettiness, he’ll have to embrace it. Thus far, he seems prepared to do just that: Even before the DSCC circulated fundraising e-mails, McConnell blasted out his own through the NRSC, writing that “the American people deserve to have a say in the selection of a new justice to the Supreme Court.”

Republican lawmakers agree that there are certain risks to not holding a hearing. But, in their view, the reverse scenario is even riskier.

“There will be a lot of discussions next week,” says Lee. “But the fear is that any step taken toward confirming a nominee could make an ultimate confirmation of a nominee more likely.”

#related#Hatch agrees, arguing that a hearing for the president’s nominee would only give Democrats an opportunity to “personalize” the process and mount greater pressure to move forward. “To hold a hearing, to give any indication that we would consider” the nominee “just creates even more politics,” he says. “The more you give in to the Democrats on this, the more they’ll demand that you have to take it to an up-or-down vote in committee.”

“I think [Judiciary Committee] chairman Grassley will recommend we not go forth at this time,” Hatch adds. “It would only be a brouhaha.”

Sessions is more blunt. “I think the future of the country is at stake,” he says. “For that reason, I see no reason to have a hearing. . . . Some people just don’t change their minds. Listen, it’s over. It’s just the way it will be.”

— Elaina Plott is a William F. Buckley Fellow in Political Journalism at the National Review Institute.

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