Despite fierce GOP opposition to allowing President Barack Obama to appoint another Supreme Court justice, some Republicans are suggesting his pick could be confirmed after the November election, particularly if Democratic hopeful Hillary Clinton is elected president.
Fissures started appearing in the Republican rampart almost immediately after Obama announced his choice of Merrick Garland, D.C. Circuit Court of Appeals’ chief judge, on Wednesday morning.
Senate Majority Leader Mitch McConnell, R-Ky., a man noted for his calm and stoic demeanor, delivered an impassioned speech on the Senate floor reiterating the point he made mere hours after the death of Justice Antonin Scalia last month — that the next president should have say over who filled Scalia’s chair.
“The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be,” McConnell said.
As McConnell spoke, he was flanked by members of his leadership team, Majority Whip John Cornyn of Texas and Conference Vice Chairman John Barrasso of Wyoming, as well as Judiciary Chairman Charles E. Grassley of Iowa and Senate President Pro Tempore Orrin G. Hatch of Utah, a former Judiciary chairman himself.
But the dynamics of the 2016 presidential race have cast a pall over the business of this Congress. And as front-runner Donald Trump racks up delegates in the GOP nomination contest, some Republicans, including those close to McConnell and on Grassley’s panel, want to leave themselves a way out.
“I’d probably be open to resolving this in the lame duck,” Hatch said after the president made his announcement, speaking of few weeks left in the session that follow the election. Later he clarified, “I’m open to it, that doesn’t mean I’m for it.”
Such sentiment might be signal that some Republicans might be more comfortable with Garland than a pick made by, say, Clinton.
Hatch wasn’t alone.
Sen. Jeff Flake of Arizona, a member of the Judiciary Committee, said he would consider a lame-duck confirmation in the event Republicans lose big in November. “Well, yes. I mean, I think anybody that’s being honest would.”
Flake said he spoke directly with the president about a half an hour before Obama’s announcement Wednesday morning. Flake said the president informed him Garland would be the nominee, and Flake said he would be willing to meet with Garland.
“I talked to the president this morning, indicated that I would meet with whom I was asked, if a meeting was requested.”
Sen. Susan Collins, R-Maine, also said she would meet with Garland.
“I have never refused an offer to meet with a nominee to the Supreme Court. That has always been my standard practice and so I have accepted that offer and it will be scheduled after the recess,” Collins said. The Senate recess stretches from March 24 to April 3.
Collins further deviated from her leadership’s position, saying Garland should also get a hearing. “It’s premature for us to set a schedule,” she said. “But what I do believe is that this a distinguished jurist who has been on the court for 19 years and his record deserves careful scrutiny and that’s going to take a while.
“That’s why in addition to meeting with him one on one, I would like to see a hearing by the Judiciary Committee. But I respect — even if I don’t agree with — the decision that has been made by the chairman not to hold a hearing.”
Still, many Republicans were holding the line.
Sen. Rob Portman, R-Ohio, who faces a tough re-election battle against former Democratic Gov. Ted Strickland, said he would be willing to meet with Garland also, but wasn’t planning to change his position of opposing the nomination.
“If this Court of Appeals judge wants to meet with me, I’m willing to do that. … I don’t think it will be a particularly good use of his time because I plan to talk to him about why I’m taking the position I’m taking on a principled basis,” Portman said.
Cornyn also stuck to his guns when asked if any strategy would change if Democrats won the White House and the Senate. “That’s an amazing hypothetical question,” he responded. “This person will not be confirmed so there’s no reason going through some motions and pretending that it will happen, because it’s not going to happen.”