A new NBC News/Wall Street Journal Poll released Tuesday led to a slew of headlines reflecting the fact that the majority of Americans want the Senate to do its job and begin working to confirm President Obama’s Supreme Court nominee, Merrick Garland.
“Democrats are winning the Supreme Court fight over Merrick Garland. Big time,” announced the Washington Post.
By a 22-point margin (52-30) voters would like to see “the Senate vote on [Justice Scalia's] replacement” this year. When the question was first asked in February, this margin was only a single point (43-42).
Yet Republicans and conservative voters continue to isolate themselves from the rest of the electorate with their intransigence on taking any action on Garland’s nomination.
This is the conundrum for Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Majority Leader Mitch McConnell (R-KY). They can mollify the radical base of their party or they can do their jobs, consistent with the will of the people. Thus far their choice has been clear.
Grassley once again swore fealty to the radical right on a conference call with the anti-choice organization Susan B. Anthony List on Monday night, promising them “we aren’t going to have a hearing.”
Right now, despite the polling, Republican strategists believe their elected leaders' intransigence serves their own electoral benefit. Josh Holmes, who ran McConnell’s 2014 reelection campaign told the Wall Street Journal, “Any time you are looking at an electorate where you want to ensure the base is motivated to support a candidate, an issue like this helps.” He continued, “by almost any measure that we’ve seen thus far, the voters who fall into that swing category that determine an election just aren’t that interested in the Supreme Court fight.”
Holmes and many Republicans are being misled by the data. Voters want a functional government and elect senators to do a job. They are rightfully repulsed when it isn’t done.
Voters aren’t thinking about the confirmation of Merrick Garland as a fight between liberal and conservative policy outcomes. Instead it is about which party is causing dysfunction in Washington. Republicans are proudly raising their hands to take credit for the chaos, fulfilling the wishes of their base.
However, with polling data trending against them, McConnell and Grassley are putting several of their colleagues in close races in untenable positions. As a greater majority of voters push for action on the nomination, senators in close races are bound to begin to question their leadership’s obstructionist strategy.
Courting Extremism is a weekly feature on conservative responses to the Supreme Court vacancy.
Unable to come up with any honest attacks against Judge Merrick Garland’s record, conservatives continue to try to find new ways to justify the Republican leadership’s refusal to even hold hearings on Garland’s nomination to the Supreme Court. At least one activist, Gun Owners of America’s Larry Pratt, even suggested that the Second Amendment was designed in part to stop people like Garland.
Here are the five most ridiculous conservative pro-obstruction arguments of the week:
5) The NRA Rule
Mitch McConnell continues to move the goalposts on his party’s Supreme Court blockade. First, the Republican leader flatly declared that the Senate would not consider any nominee to fill the vacancy on the Supreme Court until a new president is in office.
Then, in an interview on Sunday with Fox News, McConnell added a new caveat, declaring that as long as Republicans hold a majority, the Senate would not confirm Garland because he is facing opposition from conservative groups like the National Federation of Independent Business and the National Rifle Association.
McConnell’s comments are particularly revealing, as he and other Republicans have insisted that their Supreme Court blockade isn’t about politics but is about a (nonexistent) Senate tradition to refuse to hold confirmation votes for Supreme Court nominees during election years.
If McConnell was taking this stance truly out of principle rather than partisanship, there would be no need to cite pressure from the NFIB and NRA. His statement also seems to imply that Republicans may obstruct any nominee if a Democrat succeeds Obama, seeing that the two right-wing groups are unlikely to support anyone nominated by a Democratic president.
4) Perpetual Obstructionism
Eagle Forum founder Phyllis Schlafly appears to be on the side of those who think that only a Republican president should be allowed to replace the late Justice Antonin Scalia.
She told Armed America Radio this week that Senate Republicans need to clearly state that “we don’t want any new nominee on the court until we have a Republican who will appoint somebody of the nature of Scalia.”
“The Court can continue to function indefinitely with fewer than nine Justices, as it has many times in our history,” Schlafly wrote in an op-ed. She then suggested that if a Republican becomes president, a Republican Senate could use the opportunity to pack the court with more than nine justices:
If Republicans elect the next president and retain control of Congress, there will be plenty of time to add new Justices to the Supreme Court. One scholar proposed expanding the size of the Court to 11 or more Justices, since a larger Court reduces the likelihood that any single appointee would fundamentally change the Court’s direction.
In addition to controlling the size of the Supreme Court, Congress could also authorize the President to nominate new Justices on a regular timetable — say, one during each two-year term of Congress. Under that system, a new Justice would join the Supreme Court every two years, regardless of whether an existing Justice dies or retires during that period.
3) If At First You Don’t Succeed…
Anti-choice activists are desperately trying to find reasons to oppose Garland’s nomination.
Now the outlet has LifeSiteNews run an article alleging that Garland “ruled against Priests for Life in a case involving the HHS mandate.”
Garland, however, wasn’t one of the three judges on the D.C. Circuit to hear Priests for Life’s challenge to the contraception mandate. LifeSiteNews was angry that Garland voted against rehearing the case — the three judge panel ruled unanimously against Priests for Life — before the full court of appeals, or an en banc review.
As Paul wrote, such a vote does not constitute a ruling against the group, despite LifeSiteNews’ claim:
A vote for or against en banc review, absent an accompanying opinion, does not necessarily tell you anything about why the judge voted that way. In fact, several of the judges wrote or joined lengthy opinions explaining why they were for or against an en banc review. Chief Judge Garland joined none of them. Neither did George W. Bush nominee Thomas Griffith or Clinton nominee David Tatel, both of whom voted along with Chief Judge Garland not to rehear the case. The majority of the court voted against en banc review, so we don’t know how Garland would have voted on the merits of the case.
The challenge to the contraception mandate was inevitably headed to the Supreme Court as several other circuit courts heard similar challenges. Indeed, the high court heard arguments on the Zubik case earlier this week.
2) He’s An Extremist!
After President Obama took office, the Judicial Confirmation Network changed its name to the Judicial Crisis Network and changed its mission from encouraging the speedy confirmation of judicial nominees to advocating for obstructionism and no-votes.
Just six years ago, JCN spokesperson Carrie Severino hinted that her group wouldn’t put up much of a fight if Obama nominated Garland to the Supreme Court. “[O]f those the president could nominate, we could do a lot worse than Merrick Garland,” Severino told the Washington Post at the time. “He’s the best scenario we could hope for to bring the tension and the politics in the city down a notch for the summer.”
Fast forward six years, and all of a sudden JCN is attacking Garland as a left-wing extremist in this new web ad:
1) ‘The Second Amendment Is All About People Like Judge Garland’
Conservative groups have repeatedly claimed that Garland opposed a challenge to a Washington, D.C., handgun ban and supported a national gun registry.
“He voted against Dick Heller,” Gun Owners of America head Larry Pratt said on “Trunews” this week. “He voted against the idea that any citizen of the District of Columbia has an individual right to keep and bear arms.” “He also voted to uphold Bill Clinton’s registration scheme,” he added, claiming that the judge’s track record demonstrates “opposition to the Second Amendment.”
“This is the guy that has been told to us by many folks, including the president, that ‘this is a moderate,’” Pratt said. “Well, I guess in the Kremlin there are moderates but that’s not the kind of moderate we need on the Supreme Court.”
Update: Grassley and McConnell have at last accepted Obama’s invitation to discuss potential nominees at the White House, although they are still refusing to hold hearings or a vote on any potential nominee.
As Senate Republicans close ranks in an attempt to prevent President Obama from nominating the next Supreme Court justice, Republicans on the Senate Judiciary Committee have declared that they will refuse to hold a hearing on Obama’s nominee, no matter who it is. On top of that, the Des Moines Register reports that the committee’s chairman, Sen. Chuck Grassley of Iowa, hasn’t even responded to an invitation from the White House to discuss possible nominees.
The Republicans’ unprecedented Supreme Court blockade exposes the lie that has undergirded eight years of GOP obstructionism: that President Obama is “the most divisive” president in history and that he refuses to reach across the aisle.
Senate Majority Leader Mitch McConnell, who just an hour after the news broke of the death of Justice Antonin Scalia, made it clear that he didn’t intend to consider any Obama nominee to fill Scalia’s seat, has called Obama the “most divisive” president he’s worked with. Marco Rubio, the Florida Republican senator and presidential candidate, has said that Obama is the most “divisive” political figure in modern history. The claim has been repeated over and over again in talk radio and the halls of Congress. Texas Republican senator and presidential candidate Ted Cruz complained after Obama’s final State of the Union address last month that the president “lectures us on civility yet has been one of the most divisive presidents in American history."
As Paul Waldman wrote in “The Week” last month, the primary example of the “divisive” Obama that Republicans point to is that he “crammed ObamaCare down our throats” — a strange way to explain a bill that became law through the legislative process.
Let's just remind ourselves of how Republicans have treated Obama over his seven years in office, with a few of the greatest hits. You can start right on the day of his inauguration, when congressional Republicans gathered for a dinner at which they decided that rather than seek areas of cooperation with the new president, they would employ a strategy of maximum confrontation and obstruction in order to deny him any legislative victories.
They followed through on this plan. As Mitch McConnell explained proudly in 2010, "Our top political priority over the next two years should be to deny Barack Obama a second term."
Senate Republicans’ attitude toward Obama’s judicial nominees has followed a similar pattern,evenbefore the current Supreme Court showdown. As we noted last week, right-wing pressure groups and their allies in Congress, including Cruz and Sen. Mike Lee, were trying to shut down the federal judicial confirmation process in Obama’s final year before Scalia’s death.
If Grassley is really now refusing to even meet with Obama to discuss potential Supreme Court nominees, the Right should finally retire its talking point that it’s Obama who refuses to reach across the aisle.
Lest anyone think that Mitch McConnell hasn’t been paying attention to the judicial vacancy crisis or the Americans who pay the price when their cases are delayed or relocated, today everything changed: today Senator McConnell allowed a vote on … one judicial nominee!
Later today, the Senate is scheduled to vote to confirm Alfred Bennett to the Southern District of Texas. But if McConnell is expecting congratulations, he should expect to wait a long time … just as he forces judicial nominees to wait for a confirmation vote.
If anyone had said four months ago that we’d still be waiting for the Senate to hold a confirmation vote for Loretta Lynch, no one would have believed it. Yet here we are. Although she was approved by the Judiciary Committee three weeks ago, Mitch McConnell just can’t bring himself to schedule a floor vote for her.
Lynch is supremely qualified to be AG. Progressives and conservatives alike have written to the Senate praising Lynch and urging her confirmation. In fact, not a single one of the Republicans’ own witnesses at her confirmation hearing actually opposed her confirmation.
Yet Republicans in the Senate continue to make a partisan brawl out of a consensus nomination.
Until now, regardless of which party was in the White House or in control of the Senate, the attorney general nominee has gotten a confirmation vote very quickly upon committee approval. But Lynch’s nomination has been languishing on the Senate floor for nearly three weeks, longer than the wait-time for the past five attorney general nominees combined.
McConnell has jettisoned his promise to allow a vote this week. At the beginning of next week, Lynch will have been waiting for a floor vote as long as the previous seven attorneys general combined:
Click chart for larger image.
McConnell’s latest excuse for delay is that the Senate needs to vote on a human trafficking bill first … a bipartisan bill that Republicans politicized by inserting an anti-choice provision.
The Lynch nomination was a great opportunity for Republicans to show the American people that they can govern. Instead, they’ve shown the American people that they won’t pass up any opportunity to play politics, as they pile unheard-of delay after delay on the person who should already have been confirmed as our nation’s first African American woman attorney general.