Can Democrats Keep The SCOTUS Fight Alive All Year?

AP

When Republicans announced this week that they would not even hold hearings for President Barack Obama’s eventual nominee to the Supreme Court, Democrats were floored.

They weren’t expecting the political battle royale Senate Majority Leader Mitch McConnell (R-KY) challenged them to, but publicly and privately they say that they think McConnell has overreached and given them a political opening.

A Democratic leadership aide called the situation “a win, win, win, win, win for us.”

“All we have to do is not screw this up,” the aide said.

The biggest test for Democrats, and the source of the most uncertainty, is sustaining the message all the way until November. With no confirmation hearings, high-profile courtesy calls for the nominee to pay to GOP senators, or any of the other media-heavy trappings of the normal confirmation process, keeping the story afloat will be their challenge. But that effort is already underway.

Over the next few weeks, Democrats can be expected to remind voters at every opportunity that the Constitution-loving Senate Republicans are shirking their Article Two duties. Already, the fight has devolved into raw politics and a matter of controlling the message. While Republicans say they have the winning argument in pointing to November’s election as reason to not consider Justice Scalia’s successor, Democrats think that pressure will mount and voters will side with them in the fall.

“We’re just seeing it and feeling it everywhere,” Sen. Chuck Schumer (D-NY) — a member of the Judiciary Committee, which usually leads the Senate’s confirmation process — told TPM on Capitol Hill. “This is not a Democratic or Republican issue. Independents, everyone like that, say, ‘Do your job, don’t blockade, don’t obfuscate.’ It’s the same thing that happened in 2013 when they tried to shutdown the government.”

To a certain extent, White House carries the weight of controlling the narrative, now that President Obama has made clear he will submit a nominee regardless Republicans’ intentions to consider him or her.

“Once the president has nominated, I am hopeful what the general public will see is he’s chosen for advice and consent an eminently qualified, obviously confirmable candidate, and that will increase calls for Republicans to abandon an unconstructive posture of complete obstruction and instead at least give a hearing to the president’s nominee,” Sen. Chris Coons (D-DE) told TPM. “We are called under the Constitution to give advice and consent. Advice and consent does not consist of putting your hands on your ears and saying, “nah nah nah nah nah, I refuse to listen to you.’”

Besides the Senate Republicans themselves, the Democrats have another adversary in winning the fight over a Supreme Court: time.

Now that McConnell has drawn a line — no hearings, no votes, no meetings — that couldn’t be clearer, the challenge for Democrats is to keep the story alive. Part of the GOP strategy in not going through the confirmation process is that Republicans can starve the story of oxygen.

When asked if the only tool Democrats had right now was public pressure, Sen. Dianne Feinstein (D-CA) responded, “That’s the biggest tool of them all. It works.”

But, in the meantime, there may be very little Senate Dems can do to turn up the heat.

“Look, I’m not sure,” Sen. Cory Booker (D-NJ) said, when TPM posed the question to him. “It looks like a standoff right now. I think if you look at the evidence, if you look at the Constitution itself, it’s very explicit about what the obligations of the president are and Congress, as well as the tradition of this body, and I am hoping that becomes very persuasive.”

Outside Dem groups are beginning to use the issue against Republicans up for re-election in swing states, like Sens. Mark Kirk (R-IL) and Kelly Ayotte (R-NH), who could be seen this week avoiding reporters the best they could on Capitol Hill. But there are likely months between when Obama submits a nominee — which is expected in a few weeks — and November’s election.

“Now, we would rather it be only a couple of weeks that we need to do this,” Sen. Brian Schatz (D-HI) admitted to TPM. “But if need be, this is going to be front and center in terms of evaluating candidates for federal office because if you refuse to do your job, you should not be allowed to keep it.”

Sen. Amy Klobuchar (D-MN), a member of the Senate Judiciary Committee, pointed to a forum she and other Democrats hosted Wednesday with constitutional experts. But she brushed off the idea that Dems could host an informal hearing for the nominee once he or she is named by the President.

“I don’t know about that,” she told TPM. “It should go through the regular process.”

Schatz, meanwhile, said, “Tactically, I think all options are on the table.”

But the crawl of time could also work in Dems’ favor if it becomes clear that the Supreme Court is struggling to deal with the absence of a ninth justice.

“The idea of leaving a seat vacant for a year or maybe longer is something the American people can’t understand: ‘What are you guys doing? What are you thinking?'” Sen. Tom Carper (D-DE) told reporters on Capitol Hill.

The court is now at risk for split decisions on some of the big issues facing it this term — issues that include immigration, abortion and Obamacare. In a tie ruling, the lower court decision’s stands, but the decision has no precedent, creating uncertainty in the legal system.

“Last time there was a vacancy for a year, hasn’t been since the Civil War and the public intuitively understands this president was elected for a four year term not a three year term,” said Sen. Sherrod Brown (D-OH). “When they see some 4-4 decisions, I think that will help to remind them too.”

While McConnell caught Democrats — and even some Republicans — off guard, it didn’t take much to get the minority party all on the same page.

“Sometimes we have such a diverse caucus that we can project unity and unanimity when actually it was a difficult road getting there,” Schatz said. “This is not one of those situations. We are absolutely united from the jump. There was no whipping effort. Everybody understands how outrageous this is.”

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