If Senate Republicans refuse to act on President Obama’s nominee for the Supreme Court, they could be making history. If they don’t hold a hearing, it would be a first since nominees to the high court began appearing in front of the Judiciary Committee. That began happening regularly in the mid-twentieth century, according to experts.
“Felix Frankfurter became the first nominee in 1939 to appear for general questioning before the committee, though personal appearances at hearings only became standard after 1955,” said Daniel Holt, an assistant historian in the U.S. Senate Historical Office, in an email Tuesday. “Since that date, all nominees, except those who voluntarily withdrew from the nominations, have had a hearing before the Senate Judiciary Committee.”
“It is customary for the Senate Judiciary Committee to consider a president’s nominee for the Supreme Court, absent extenuating circumstances (which do not include a presidential election year),” said Sarah Binder, a George Washington University professor who specializes in the legislative process.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) left the question unresolved Tuesday, when he told reporters in Iowa that he hasn’t decided on whether to convene a hearing for Obama’s nominee. The White House has yet to name a candidate but says it intends to do so shortly.
Senate leadership aides aren’t offering much guidance about how Republicans will approach the nominee. “We haven’t made declarations on hearings,” said Don Stewart, a spokesman for Senate Majority Leader Mitch McConnell (R-Ky.), in an email Tuesday. A spokesperson for Grassley did not respond to requests for a comment.
Senate Republicans have by and large fallen in behind McConnell, who issued a statement within hours of Scalia’s passing that said the Senate should wait to fill the seat until after the 2016 elections.
Democrats, for their part, counter that the American people had already weighed in when they elected Obama in 2008 and 2012. Republicans would be grossly irresponsible not to act on Obama’s nominee, they say.
Senate Republicans face risks either way. On the one hand, deciding to forgo giving Obama’s Supreme Court pick a hearing plays nicely into the hands of the next Democratic leader, Sen. Chuck Schumer (D-N.Y.), who is calling McConnell’s strategy obstructionist.
GOP leaders worked hard in 2015 to demonstrate that they could run the chamber more effectively than their Democratic counterparts. They had hoped to use a series of bipartisan accomplishments last year to make the case that Americans should keep the Senate in Republican hands this November.
Now Democrats can say they are doing the exact opposite. “When the hard right doesn’t get its way, their immediate reaction is, ‘Shut it down,’ and the Republican leadership marches in lock step,” Schumer said Tuesday. “They did it in 2013 when they tried to shut down the government, and they’re doing it today with their attempt to shut down the Supreme Court.”
On the flip side, however, convening a confirmation hearing runs the risk of allowing an Obama nominee to gain traction, especially if the White House taps a moderate who has already been approved by the Senate for another position.
Asked whether Democrats were prepared to stall the chamber’s legislative work over Obama’s nominee, a spokesman for Schumer said it’s too early to tell. “We hope public pressure forces them to relent. If it doesn’t we’ll cross that bridge when we come to it,” the aide said in an email.
A 2015 Congressional Research Service report said that since 1975, Supreme Court nominees who receive a hearing do so, on average, within 39 days of their nomination.