I’m not sure there’s an issue that generates more opposing reactions than the one Jonathan Chait turned to over the weekend: the possibility a Republican-majority Senate would establish a flat-out blockade of a Supreme Court vacancy in 2015 or 2016. People either are certain Republicans would do so, or dismiss the idea as preposterous. I’m somewhere in the middle.
It would be unprecedented for a Senate majority to decide not to fill a Supreme Court vacancy for a year or more. Yet it was more or less unprecedented for a Republican minority in the Senate to use the filibuster to blockade several judicial and executive branch positions, as occurred over the last few years .
Chait notes that Majority Leader Mitch McConnell and Republican senators bet correctly that obstruction wouldn't cost them with public opinion. Most members of the small group of people who pay close attention to nominations to the National Labor Relations Board or the D.C. Circuit Court are solid partisans, and will almost always conclude that their side is correct.
Would the Supreme Court be different? The press would treat it as a much larger story. Still, it’s not likely to become a real voting issue, either in Senate or the 2016 presidential elections. Again, most of the people who really care about the Supreme Court are solid partisans.
This doesn’t mean we should definitely expect a blockade, however.
Republicans are more likely to blockade a Supreme Court vacancy if they have a large Senate majority. With 51 or 52 senators, they only could enforce the blockade safely by keeping nominations off the Senate floor; with 55 or 56, they probably could schedule a final confirmation vote on any nomination and be confident of defeating it.
Expectations about 2016 may also play a role, and any combination of unified or divided control of the White House and the Senate is possible. Generally, the more Republicans expect a new precedent to come back and bite them, the less likely they should be to set it.
Another key determinant is the re-election paranoia among Republican senators, especially the ones up in 2016. As I said above, it’s unlikely that a Supreme Court blockade would be a major electoral consideration. But politicians are paranoid. The question is whether they’re more focused on primary challenges (and would tend to support a blockade) or the general election (and might shy away from a confrontation). With several Republican senators from marginal states up in 2016, it wouldn’t be surprising if they wanted to avoid overly partisan fights. It’s one thing for a Republican lawmaker from Utah or South Carolina to pick a fight that’s expected to break along partisan lines; it’s quite another for a Republican from Pennsylvania or Wisconsin to want that fight.
What is is overrated in these discussions is the importance of the specific justice whose seat would be open. Replacing one of the Republican-appointed justices could have greater short-term effects, but there are only nine seats, and each one is very important.
One last thing. This is all about blockading a seat on the Supreme Court, by refusing to confirm any potential nomination by President Barack Obama . I don’t know that I’d call that a constitutional crisis, but it would be contrary to the spirit of the Constitution. On the other hand, opposing a particular nominee is perfectly proper. The number of Democratic senators should determine how easy it is for Obama and the Democrats to be able to seat who they want, just as Republicans should be increasingly able to limit Obama as their own Senate conference gets larger.
But a flat-out blockade would be destructive even if Republicans had a supermajority of 60 or 65 senators. That isn't how the process is supposed to work. If it happened, Republicans would deserve criticism, just as they deserved criticism for attempting to blockade other positions with the filibuster.
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