The courtroom of the U.S. Supreme Court is seen in Washington, April 4, 2016.
Photo by Jonathan Ernst/Reuters

A third GOP senator backs an indefinite Supreme Court blockade

Senate Intelligence Committee Chairman Richard Burr (R) recently spoke to a Republican audience in North Carolina, where he unwisely told a joke about shooting Hillary Clinton. The GOP senator, in a tough re-election fight, apologized for his “inappropriate” humor after a recording of his comments surfaced.

What Burr did not apologize for was a comment about his plans for the Supreme Court.
“If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court,” he said.

Burr’s position matches that of U.S. Sen. John McCain, who recently said Republicans will block anyone Clinton might nominate to the Supreme Court.
It does, indeed. Two weeks ago, McCain was accidentally candid about his party’s plans for the high court, declaring on a radio show, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you.”

As we discussed, what McCain was describing, of course, was a continuation of a Republican blockade, unprecedented in American history, blocking any high-court nominee from a Democratic president, regardless of merit. A controversy ensued and McCain walked back his emphatic “promise.”

But the following week, Sen. Ted Cruz (R-Texas) weighed in, effectively endorsing the same idea, telling reporters there’s a “long historical precedent” for a Supreme Court with fewer than nine justices. The right-wing senator added that he and his colleagues will have to “debate” whether or not they meet their constitutional obligations in the event of a Democratic victory.

After McCain’s comments, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) conceded that Republicans “can’t just simply stonewall” any Democratic nominee, just because he or she is a Democratic nominee. Now we have some GOP senators effectively saying, “Well, maybe we can.”

Indeed, by some measures, Burr was even more blunt on the subject than Cruz – while the Texan was cagey about his specific intentions, the North Carolinian was unambiguous about keeping a Supreme Court vacancy in place unless voters elect a president of his own party.

As New York’s Jon Chait added, this isn’t limited to Capitol Hill: a variety of far-right scholars and writers have joined the crusade, beginning “the arduous intellectual work of discovering why the Constitution demands that Clinton be denied a ninth justice.”

We can go one step further with this. Presumably, in the event of a Clinton victory, should any other justices leave the high-court bench for any reason, Senate Republicans and their allies would argue that those vacancies must also remain in place, indefinitely, because only Republican presidents should be allowed to successfully nominate future justices.

Circling back to our previous coverage, keep in mind that since February, GOP senators have repeatedly argued that the next president, not President Obama, must have the opportunity to fill Supreme Court vacancies – because they say so. Now, however, there’s a trio of Republicans who seem to be suggesting, “Maybe the president after the next one can handle this.”

The radicalism of such a posture is hard to overstate. For generations, the governing model, as outlined by the Constitution, was quite straightforward: a president sends a Supreme Court nominee to the Senate, senators consider the nominee, the nominee receives a vote. If confirmed, the justice heads to the bench; if not, it’s up to the president to select someone new.

What Burr, the chairman of the Senate Intelligence Committee, and others on the far-right are suggesting is that there’s no reason to honor this model. Republicans can not only ignore their duties in 2016, the argument goes, they can continue to impose a judicial blockade until Americans choose a president GOP senators find satisfactory.

In other words, under the vision Burr prefers, the Supreme Court may continue with eight justices – or perhaps even fewer – until 2021, at a minimum, simply because Republican politics have reached a point of “unprecedented maximalism.”

As we’ve discussed, it’s part of a philosophy that says a Democratic president is, by definition, an illegitimate president. Advise and consent is a nice principle in our system of government, but it’s not nearly as important as raw, scorched-earth, partisan politics.

This is a recipe for a constitutional crisis.



John McCain, Richard Burr, Senate Republicans, Supreme Court and Ted Cruz

A third GOP senator backs an indefinite Supreme Court blockade