Continued Vacancy on Supreme Court Troubles White House

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By Cheryl Bolen

Oct. 27 — The White House and Senate Democrats are deeply troubled by reports that some Republicans may block any nomination to the Supreme Court made by Hillary Clinton should she become president next year.

White House press secretary Josh Earnest said “similar comments” have been made by Sens. Ted Cruz (R-Texas), John McCain (R-Ariz.) and Mike Lee (R-Utah) suggesting that it would be preferable to have one or more vacant seats on the Supreme Court than approve whomever Clinton might nominate.

“Ted Cruz and John McCain may have given away the Republican game plan on the Supreme Court,” said Senate Democratic Leader Harry Reid (Nev.) in a fundraising letter on behalf of the Progressive Change Campaign Committee. “And we need to treat it like the constitutional crisis it will be if Democrats don’t take back the Senate majority.”

Undermines Confidence in Judiciary

At the White House, Earnest stopped short of calling the threatened blockade a constitutional crisis. At the same time, President Barack Obama has said that this type of political gamesmanship undermines confidence in the U.S. judicial system, Earnest said.

The basic principle of the U.S. judicial system is that everyone is subject to the rule of law in the same way, Earnest said. If judges or justices are only considered based on the political party of the president who appointed them, it raises questions about the impartiality of that judge, he said.

This “raises questions about whether people will be treated differently in the justice system based on their partisan affiliation,” which would do a lot of damage to the carefully considered architecture that was put in place by the Founding Fathers, Earnest said.

Some damage to public confidence has already been done through the Senate’s refusal to consider Merrick Garland, Obama’s nominee to the Supreme Court, Earnest said.

“Republicans have indicated that they don’t oppose [Garland] because of any specific substantive concern with his candidacy, but because . . . he was appointed by a Democrat president,” Earnest said.

New Nuclear Option?

Speaking to reporters Oct. 26, Reid suggested that Republicans may still approve Garland after all.

Many political observers believe that Democrats will pick up enough seats in the Nov. 8 election that there will be a Democratic majority in the Senate next year. In that case, Sen. Charles Schumer (D-N.Y.) is set to become the new Senate majority leader.

“If [Republicans] think they can hold up a Supreme Court nominee of Hillary Clinton’s then they are mistaken,” Reid told reporters.

“Because they cannot do what they need to do,” Reid said. “A filibuster of a Supreme Court justice will no longer be able to be done. I set the precedent for changing the rules and it will take five minutes for Sen. Schumer to do the same thing.”

In November 2013, when Reid was Senate majority leader, he pushed through a rules change dubbed the “nuclear option.” With the change, the Senate was able to confirm most nominees with 51 votes, although the change did not apply to Supreme Court nominees.

To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com

To contact the editor responsible for this story: Paul Hendrie at phendrie@bna.com

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