It’s well known that the Senate GOP has been stalling President Obama’s Supreme Court nomination of Merrick Garland for months in the hope that Donald Trump will win the presidential election and eventually fill the vacant Supreme Court seat. This dynamic is playing out in the lower federal courts as well, as Senate Republicans stall confirmation proceedings in an apparent effort to leave as many vacancies as possible for a potential President Trump to fill.
People for the American Way’s Paul Gordon has crunched the numbers and reports in a memo today that by stalling district and appeals court nominations, Senate Republicans are leaving far more lower court vacancies at the end of President Obama’s term in office than Democrats did at the end of President Bush’s.
Gordon reports that there are 87 current circuit and district vacancies in the federal courts today, more than double the number that there were at the beginning of the year. Contrast that with the number of vacancies during the final two years of Bush’s presidency:
Gordon notes that these vacancies do not exist because of a lack of nominees:
Now, in September of 2016, Republicans have an opportunity and a responsibility to fill dozens of vacancies. In addition to Merrick Garland, there are 29 circuit and district court nominees still bottled up in the Judiciary Committee. Only six of them have even had hearings, let alone a committee vote; two of the nominees (both from Pennsylvania) had their committee hearings last year, but Grassley still has not brought them up for a vote.
In addition, there are 20 circuit and district court nominees who have been vetted and approved by Judiciary Committee and who could — and should — have confirmation votes as soon as the Senate returns to Washington. More than a third of these have been pending on the floor for more than six months, including four who advanced from committee back in 2015.
The fact that the Senate GOP is deliberately slow-walking President Obama’s nominees in the final year of his term in office is an open secret. A top anti-abortion lobbyist said this summer that Senate Judiciary Committee Chairman Chuck Grassley and Senate Majority Leader Mitch McConnell have “moved with very deliberate speed on those nominations and it's safe to predict that there will be quite a number of vacant seats on the federal courts, including that Supreme Court vacancy, when the election rolls around.”
"There certainly would be a lot more Obama-nominated federal judges if the Senate had remained in Democrat hands," he added.
For months, Republicans have said that they are refusing to consider anyone President Obama nominates to fill the vacancy on the Supreme Court because they are simply following a (nonexistent) Senate tradition of blocking Supreme Court nominees in the final year of a president’s term.
But yesterday, Senate Majority Leader Mitch McConnell revealed the obvious: Republicans just want to hold the seat open to be filled by Donald Trump.
“On that sad day when we lost Justice Scalia, I made another pledge that Obama would not fill this seat,” McConnell said in a speech to the Republican National Convention. “That honor would go to Donald Trump next year.”
Trump, for his part, has pledged to pick anti-choice justices from lists compiled by right-wing groups like the Heritage Foundation and the Federalist Society.
A prominent anti-abortion lobbyist acknowledged this weekend that Sen. Chuck Grassley of Iowa, the chairman of the Senate Judiciary Committee, is deliberately slow-walking President Obama's federal judicial nominees at all levels in order to keep seats on the courts open for the next president to fill.
Douglas Johnson, the legislative director of the National Right to Life Committee, said on Saturday at his group's convention in Virginia that "the left is quite unhappy with the number of nominations that have not come to a vote in the Senate." This, he said approvingly, is because Grassley and Senate Majority Leader Mitch McConnell have "moved with very deliberate speed on those nominations and it's safe to predict that there will be quite a number of vacant seats on the federal courts, including that Supreme Court vacancy, when the election rolls around."
"There certainly would be a lot more Obama-nominated federal judges if the Senate had remained in Democrat hands," he said.
Grassley has denied that he is slow-walking federal judicial nominations, despite ample evidence to the contrary, telling The Des Moines Register in April that he is simply following the practice of Democrats and Republicans alike.
Johnson particularly praised Grassley and McConnell for blockading the nomination of Judge Merrick Garland to fill the Supreme Court seat of the late Justice Antonin Scalia.
After Scalia died, he said, "the Senate majority leader reached out to senators all across the country and the world and indicated that what they had to do is take a hard line that this seat was not going to be filled by Barack Obama in the last year of his presidency, that who fills this seat was going to be determined by the person selected to be president by the American people in November. And they agreed to that."
McConnell, he said, "knew what had to be done."
"This made a difference," he said. "If this had been a Democrat Senate, possibly even been a Republican Senate under different leadership, that seat would have been long since filled."
He added that he was disappointed that the Senate's obstruction of the Garland nomination hadn't stopped a victory for abortion rights in Whole Woman's Health v. Hellerstedt, but noted that it "has been decisive on some other important matters."
Since Senate Judiciary Chair Chuck Grassley is making sure that the committee he runs completely ignores Merrick Garland’s Supreme Court nomination, one might think that he’s using the extra time to at least process the president’s many circuit and district nominees. Not!
While Grassley and Senate Majority Leader Mitch McConnell’s brazen and unprecedented refusal to consider Garland has drawn a great deal of attention, PFAW has long reported on how this obstruction, far from being unique to Garland, is an extension of how the Senate GOP has treated President Obama’s lower court nominees for most of his time in office.
Today, Sen. Elizabeth Warren has made a tremendous contribution to the national conversation, issuing a new report entitled Going to Extremes: The Supreme Court and Senate Republicans’ Unprecedented Record of Obstruction of President Obama’s Nominees." The senator covers how Republicans have worked hard not to thoughtfully vet both judicial and executive branch nominations, but to slow down their confirmations as much as possible, or block their confirmations altogether.
She uses Senate Republicans’ own statements about the Garland nomination to show the disingenuousness of the rationales for obstruction they present to the public and demonstrates that their obstruction is unprecedented. And with a prosecutor’s efficiency, she makes the powerful case that the GOP has consistently and deliberately slow-walked or blocked altogether the president’s circuit and district court nominees, as well as his executive branch nominees.
Supported with facts and figures from the nonpartisan Congressional Research Service, Sen. Warren’s new report is a devastating indictment of a political party that has misused the confirmation process to prevent the executive and judicial branches from functioning effectively to protect consumers and workers, hold large corporations accountable, and protect equality.
As she notes in the report’s conclusion:
From the moment the Supreme Court vacancy arose, Senate Republicans linked arms in an attempt to deny President Obama the full authority of his office in the final year of his presidency. They cynically claimed they wish to “let the people decide,” but the people have already decided. Twice. They elected President Obama in 2008 by nine million votes and re-elected him in 2012 by five million votes. Republicans’ statements over many weeks have made clear that their true interest is what it has been for the past eight years: to block and hinder President Obama at every turn, dragging out or blocking outright the confirmation of nominees across the government and the courts.
As the report shows, the GOP has a shameful record of obstruction going back to President Obama’s first days in office. The unprecedented blockade against Garland is only the apex of a pattern that has gone on for years.
Senate Republicans continue to hemorrhage support for their unprecedented decision to not hold any hearings on President Obama’s Supreme Court nominee, with a new poll from Public Policy Polling finding that Americans continue to oppose the GOP’s obstructionism.
The poll, conducted for Americans United for Change between May 4 and 5, finds that 58 percent of voters believe that the “vacant seat on the Supreme Court should be filled this year,” and that 65 percent think the “Senate should hold confirmation hearings for the nominee.”
Fifty percent of voters are less likely to vote for a senator who “opposed having confirmation hearings,” and Senate Majority Leader Mitch McConnell, one of the architects of the obstruction plan, has a mere 11-percent national approval rate.
One reason the GOP’s messaging on the court vacancy has continued to struggle has been the rise of Donald Trump. A majority of voters, 53 percent, according to the poll, “do not trust Donald Trump to nominate a new Supreme Court justice.”
Another day brings another terrible poll for Senate Republicans.
This time the bad news for the GOP comes from Ohio, where former Democratic Gov. Ted Strickland* is challenging incumbent Republican Sen. Rob Portman.
Public Policy Polling notes, “The Senate race in Ohio remains very tight, with Rob Portman and Ted Strickland each at 38%, and 23% of voters undecided. Rob Portman has just a 32/40 approval spread.” They explain, “That puts him well behind Sherrod Brown's 42/33 spread for honors as Ohio's more popular Senator (Brown also has an early 47/33 lead in a hypothetical rematch in 2018 against Josh Mandel.)”
Why are voters turning so strongly against the incumbent? According to PPP, “one issue percolating right now that really has the potential to hurt Portman is the Supreme Court seat. 53% of voters want to see the seat filled this year to only 39% who don't, including a 60/31 spread with independents in favor of filling it this year.”
Most interestingly, “where voters are really mad with Senate Republicans is the issue of holding hearings and at least giving Merrick Garland a fair shot. 65% of voters think the Senate should have hearings on Garland's nomination to only 21% of voters opposed to doing so.”
This is just one in a string of states in which Republican obstruction is tanking the poll numbers of GOP senators. Incumbents in New Hampshire, Wisconsin and Pennsylvania all find themselves in electoral hot water. Even Arizona’s John McCain is now in a tight reelection contest and Senate Judiciary Committee Chairman Chuck Grassley has seen a 29-point drop in net approval ratings in his home state.
This polling collapse is driven by a miscalculation by Senate Majority Leader Mitch McConnell and his leadership team. They believed independent voters would see their blockade of Merrick Garland’s Supreme Court appointment as standard ideological bickering and at worst declare “a pox on both your houses.”
In this case, though, voters recognize that the dysfunction they despise in Washington is the fault of Senate Republicans serving the whims of the extremes of their party.
With Donald Trump now the likely Republican nominee, senators up for reelection are painted into an even tighter box.
As we get closer to November, McConnell’s position becomes more and more untenable. Campaign dollars will be spread thin as previously safe races, like McCain’s, require great financial commitment. This will pull resources away from at-risk incumbents like Ron Johnson in Wisconsin and from open seats in Florida and Nevada.
If McConnell doesn’t reverse course soon and begin confirmation hearings for Merrick Garland soon, the question will be how many Senate seats he is willing to sacrifice to placate his party’s far-right flank.
* Full disclosure: I worked in Ted Strickland’s congressional office from 2001-2003.
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.
First, abortion rights opponents expressed outrage that Garland attended a book party celebrating the release of journalist Linda Greenhouse’s biography of Justice Harry Blackmun, the author of the Roe v. Wade decision.
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.
Unsurprisingly, the group, like some of its allies in the conservative movement, is also changing its tune on Garland.
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.”
However, Garland did not rule on the merits of the Heller case and he never came anywhere close to approving a national gun registry, as Pratt alleged.
“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.”
Then, Pratt issued a veiled warning to Garland similar to those he has given Democratic officials whom he considers anti-Second Amendment. When the program’s host, Rick Wiles, asked if Garland would shift “the balance of power” on the court against the Second Amendment, Pratt responded: “Judicially, it’s in a heap of trouble. Happily, the Second Amendment is all about people like Judge Garland so there is a limit to how far he can go, I think.”
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."
The Affordable Care Act itself was designed as something of a political compromise solution, containing elements of plans previously championed by Republicans. But Republicans in Congress closed ranks against the reform, eventually shutting down the government in protest of the law.
Senate Republicans’ attitude toward Obama’s judicial nominees has followed a similar pattern,even before 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.