By David Nir
Saturday Feb 13, 2016 · 6:48 PM EST
In the wake of Supreme Court Justice Antonin Scalia’s death, Republicans abandoned any pretense at decorum and immediately began issuing pronouncements as to how and when Scalia’s seat should be filled—namely, not by Barack Obama. If that’s the way they want to play it, then fine: Here’s how Democrats should respond.
There’s no law or Senate rule that can compel Mitch McConnell, the GOP majority leader, to allow a vote to proceed on anyone Obama might nominate. McConnell could choose to wait as long as he likes—indeed, he can wait until Republicans control both the White House and the Senate at the same time. And if that situation doesn’t obtain in 2017, he could delay confirmation hearings until 2021, or 2025—whenever the red stars finally align.
Could “political pressure” move McConnell any more quickly? Unlikely. Republicans don’t care what the traditional media says about them—hell, they love to claim the press is their enemy—so even if a thousand newspaper editorial boards exhorted McConnell to move forward on a nomination, he’d just shrug his shoulders. And it’s even less likely that any Republican senator would find him or herself threatened for re-election because of GOP recalcitrance. Process stories rarely move voters.
But there is one force in this universe McConnell does have to respect, and that’s the nuclear option. In 2013, when Senate Democrats eliminated the use of filibusters for most presidential appointments, they still kept them in place for Supreme Court nominations. Therefore, even if Republicans lose both the Senate and the White House this November, they could still filibuster any Supreme Court pick that Hillary Clinton or Bernie Sanders might put forward in 2017.
And that’s why Chuck Schumer, who will replace Harry Reid as leader of the Senate Democrats next year, has to be willing to go full thermonuclear and end the filibuster once and for all if Democrats retake the chamber. In that scenario, a Democratic president could nominate whomever he or she likes, and the Democratic-controlled Senate could confirm that person, with as few as 50 votes since the vice president would break ties.
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