Obama cast the dispute as a question of how far Republicans want to push their opposition and whether the Senate can function in the hyperpoliticized climate. Fights over judicial nominations are not new, he noted, but “the Supreme Court's different.”
“This will be a test, one more test of whether or not norms, rules, basic fair play can function at all in Washington these days,” he said.
Obama spoke as he closed a meeting of Southeast Asian leaders at Sunnylands, a Southern California desert retreat. Obama gathered ASEAN members for two days of talks on security and counterterrorism efforts.
But the president's attention was divided. Since Scalia's unexpected death at a remote Texas ranch on Saturday, White House lawyers and advisers have been scrambling to refine and vet a list of potential replacements, while also devising a strategy to push a candidate through the Republican-led Senate.
Senate Majority Leader Mitch McConnell of Kentucky has said he doesn’t think Obama should be putting a candidate forward. McConnell and several Republican senators up for re-election this year,say Obama should leave the choice up to the next president. The November election, they argue, will give voters a chance to weigh in on the direction of the court.
Obama dismissed that notion. He has said he will put forward a replacement in due time and that he believes the Senate will have “plenty of time” to give the nominee a fair hearing and a vote. Democrats say he has every right and a constitutional duty to fill vacancies on the court until he leaves office Jan. 20, 2017.
The Republicans’ recommended solution is “irresponsible, and it’s unprecedented,” Sen. Pat Leahy, the ranking Democrat on the Senate Judiciary Committee, said Tuesday. “The American public expects us to do the job we’re elected to do. The president is going to do what he is elected to do, and let’s vote up or down.”
The dispute reflects years of escalating partisan hostilities over judicial nominations, as well as the unusual timing.
The pace of lower court confirmations always slows in a presidential election year, as the party that does not control the White House prefers to hold out hope that its nominee will fill vacant judgeships rather than give lifetime tenure to the other party’s choices.
But Supreme Court vacancies in presidential years are rare, in part because the justices avoid retiring when prospects for confirming successors are uncertain.
If Senate Republicans hold fast to their vow not to confirm anyone Obama nominates, then the Supreme Court will operate with eight justices not just for the rest of this court term, but for most of the next one as well. High court terms begin in October, and the 80 or so cases argued in the course of a term typically are decided by early summer.
The court will be unable to issue nationwide rulings on any issue in which the justices split 4-4.
The Associated Press