- The Washington Times - Thursday, February 18, 2016

Conservatives rallied Thursday to defend Republican senators who have vowed to block a Supreme Court nomination by President Obama, as polling suggests the battle isn’t playing out how Democrats hoped and the public is evenly split on whether Mr. Obama should get a chance to shift the court to the left in the wake of the death of Justice Antonin Scalia.

The Judicial Crisis Network announced a seven-figure advertising campaign defending Sens. Kelly Ayotte of New Hampshire, Chuck Grassley of Iowa, Ron Johnson of Wisconsin, John McCain of Arizona, Rob Portman of Ohio and Patrick J. Toomey of Pennsylvania — each of whom is up for re-election this year.

“The American people are fed up with Washington politicians, and the selection of the next justice is simply too important to leave to politics as usual,” said Carrie Severino, chief counsel and policy director for the network.

The ad campaign also will defend Senate Majority Leader Mitch McConnell, who said the Senate would refuse to accept an Obama nominee to replace Justice Scalia, who died over the weekend.

Mr. Obama has vowed to submit a nominee, and Senate Democrats are working furiously to portray Mr. McConnell and other Republicans as obstructionists. Amid a torrent of editorials criticizing the Republicans’ stance, Democrats predict Mr. McConnell will have to cave.

But several polls this week suggest the public is more ambivalent on whether Mr. Obama should nominate a successor for Justice Scalia with less than a year to go in his term, much less whether the Republican-controlled Senate should approve his pick.

An NBC News/Wall Street Journal poll released Wednesday found 43 percent of those surveyed said the Senate should vote this year, while 42 percent said they should put off the whole exercise until the next president takes office in January.

A CBS News poll released Thursday showed 47 percent of Americans want Mr. Obama to name the next justice, while 46 percent said they want to wait until next year.

The polling doesn’t indicate which side has the upper hand if the decision does go into next year, but it does suggest that the public is open to Republicans’ argument that Mr. Obama isn’t the right person to fill the seat of the conservative Justice Scalia.

Who wins the fight will depend in large part on who wins the debate over the powers of the president, whom the Constitution gives the right to nominate, and the prerogatives of the Senate, which is granted the power to give “advice and consent” to the president.

“The public is, to an unfortunate degree, naive about this, and I think it’s important that the Republicans and conservatives engage in a public education campaign, rather than just leave it to the president to take advantage of that naivete in the public that whoever he comes up with, he has a right to put that person on the court, and anybody who [says] otherwise is an obstructionist,” said James Campbell, a political science professor at the University of Buffalo.

Republicans got off to a rocky start Saturday when top leaders seemed to flatly rule out holding hearings or even a vote on anyone Mr. Obama picks, saying there wasn’t enough time left to consider it.

They pointed to an 8-decade-old practice that judges nominated to openings on the high court that arise in the final year of a president’s term are generally left for the next president.

‘Irresponsible’

Democrats mocked that stance and pointed to justices who were confirmed in the final year of a presidency. They said Republicans’ flat refusal smacked of obstructionism and was more evidence that they can’t run Congress.

“The Republicans are absolutely, thoroughly, totally irresponsible,” Vice President Joseph R. Biden said in an interview with Minnesota Public Radio. “We already have enormous, unnecessary gridlock with a Congress who cannot work together at all. Add to that a third branch of government equally as important that will be hamstrung — it’s totally irresponsible.”

Mr. Biden said he predicts Republicans won’t be able to sustain their united front against even considering an Obama nominee.

Sen. Angus S. King Jr. of Maine, an independent who caucuses with Democrats, said he would never suggest that a Republican senator has to vote for whomever Mr. Obama nominates, but he added that it’s another story for Republicans to stop the process before it starts.

“There are a lot of words and phrases in the Constitution that you can argue about that are subject to interpretation. Long, windy law review articles, court cases, but four isn’t one of them,” Mr. King said on CNN’s “New Day.” “The president serves for a term of four years, not three years and one month. And, I think the president has a constitutional obligation to nominate somebody and the Senate has an obligation to take it up.”

Republicans have settled on more nuanced arguments, saying Mr. Obama’s record of ignoring Congress makes him uniquely disqualified to nominate someone to fill Justice Scalia’s seat.

“President Obama’s record of ruling through executive action and regulatory mandates has shown he is willing to circumvent Congress and bypass the will of the people,” Sen. David Perdue, Georgia Republican and a member of the Senate Judiciary Committee, said Thursday. “We cannot allow the president to continue to use the judicial system to achieve his liberal agenda.”

Sen. Ben Sasse, Nebraska Republican, took the “advice and consent” role of the Senate in considering judges literally. He issued a video message to Mr. Obama with the Supreme Court building in the background.

“Mr. President, I advise you to please nominate someone who loves the Constitution and who will repudiate your theory of ‘I have a pen and I have a phone’ executive unilateralism,” Mr. Sasse said. “That’s my advice on how you’d get my consent. Thanks for listening.”

Michael Needham, CEO of Heritage Action for America, wrote a letter to the editor in the Des Moines Register defending Mr. Grassley after an editorial in the newspaper criticized the Iowa Republican and chairman of the Senate Judiciary Committee on the issue.

“Obama’s consistent and willful disregard for our nation’s Constitution has squandered any good will that may have existed on Capitol Hill, and the Republican Senate majority is a reflection of America’s backlash to his actions,” Mr. Needham wrote.

The University of Buffalo’s Mr. Campbell said it’s important for Republicans to frame the debate in a broader context and point out that the next justice could have far-reaching consequences on the political bent of the court for years to come.

He said the way to counter Mr. Obama’s play for a short-term political advantage is to “explain the concerns, the legitimate concerns, that Senate Republicans should have, that all Americans should have [about] introducing a rubber stamp for liberal policies in the court.”

“Turning it from an unbiased, evenly divided forum to one in which it’s sort of preset to approve liberal policies — I think that’s the principal point that everybody should be able to appreciate,” he said. “Or at least centrists should be able to appreciate this.”

Democrats, meanwhile, have been trying to pressure Republicans to retreat. Senate Minority Leader Harry Reid, Nevada Democrat, predicted this week that Republicans would ultimately relent and that they would have to hold hearings and a vote on Mr. Obama’s nominee.

White House press secretary Josh Earnest said Thursday that the president intends to carry out the process “expeditiously.”

“The question is whether or not the United States Senate is going to fulfill their basic constitutional responsibility, and I think the American people, including those who are going to cast a vote in 2016, will be watching,” Mr. Earnest said.

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