- The Washington Times - Tuesday, February 16, 2016

President Obama called on Senate Republicans Tuesday to give his eventual Supreme Court nominee a fair hearing in his bid to replace the late Justice Antonin Scalia, as cracks emerged in the Republican leadership’s position of automatically blocking any nominee.

“I expect them to hold hearings. I expect them to hold a vote,” Mr. Obama said at a press conference. “There’s no unwritten law that says it can only be done on off years.”

Senate Majority Leader Mitch McConnell, Kentucky Republican, and others including presidential candidates Sens. Ted Cruz of Texas and Marco Rubio of Florida have vowed to block any Obama nominee, saying the next president should select Justice Scalia’s replacement.

Mr. Obama blasted that rationale.

“This is the Supreme Court, the highest court in the land,” the president said. “It’s the one court where we would expect elected officials to rise above day-to-day politics. I understand the stakes. I understand the pressure that Republican senators are undoubtedly under. This would be a deciding vote. But that’s not how the system is supposed to work.”

Even before Mr. Obama stated his case, there were signs that Republican unity was wavering on the notion of blocking any nominee out of hand.

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Senate Judiciary Committee Chairman Chuck Grassley, Iowa Republican, didn’t rule out confirmation hearings and a vote by his panel on an Obama selection.

“I would wait until the nominee is made before I would make any decision,” Mr. Grassley said Tuesday in a conference call with Iowa radio reporters. “In other words, take it a step at a time.”

Asked whether he thought the controversy over filling the court vacancy might endanger his re-election chances this fall, Mr. Grassley said, “I think I have a responsibility to perform, and I can’t worry about the election. I’ve got to do my job as a senator, whatever it is. And there will be a lot of tough votes between now and the next election.”

His comments appeared to be a softening from a statement shortly after Justice Scalia’s death, when Mr. Grassley said it was “standard practice” not to nominate or confirm candidates for the Supreme Court in an election year.

“It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice,” Mr. Grassley said in a statement Saturday.

Sen. Thom Tillis, North Carolina Republican, voiced caution about blocking any Obama nominee automatically.

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“I think we fall into the trap if [we] just simply say, sight unseen, we fall into the trap of being obstructionists,” Mr. Tillis said on Tyler Cralle’s radio show.

But Mr. Tillis added of the president, “If he puts forth someone that we think is in the mold of President Obama’s vision for America, then we’ll use every device available to block that nomination.”

A top aide to Senate Minority Leader Harry Reid, Nevada Democrat, responding to Mr. Tillis’ comments, predicted that Mr. McConnell will eventually retreat from his stance of blocking any Obama nominee without a hearing.

“Sen. McConnell’s rash and unprecedented decision to deny a Supreme Court nominee a fair hearing and floor vote has put Republicans in an untenable position, so it is not surprising to see cracks appear so quickly,” said Adam Jentleson, Mr. Reid’s deputy chief of staff. “The next step in this process will be for Sen. McConnell to back down and give President Obama’s nominee a hearing and a floor vote. That’s a simple reality.”

The White House said Mr. Obama will nominate someone to fill the vacancy after the Senate returns from its recess next week. Justice Scalia, 79, died while on a hunting trip in Texas last weekend.

Fox News legal analyst Peter Johnson Jr. said Mr. McConnell and other Republicans are making a mistake by vowing to block any Obama nominee, and they should “recalibrate immediately.”

“Mitch McConnell has been joined by [presidential candidates] Ted Cruz, Marco Rubio and Donald Trump in saying the president’s nominee to the court should not be considered by the Senate,” he said. “That’s an awful lot of Republicans making a big mistake.”

The No. 3 Democrat in the Senate, Charles E. Schumer of New York, said he expects Mr. Obama to select a consensus candidate who could get bipartisan support and predicted that a “huge public outcry” would force Mr. McConnell to back down.

Sen. Patrick J. Leahy of Vermont, the top Democrat on the Judiciary Committee, said, “Refusing to do anything means you’re voting maybe. That’s a cowardly way out.” In Richmond, Vermont, Mr. Leahy said the last time the court was down a jurist was during the Civil War.

But House Speaker Paul D. Ryan, Wisconsin Republican, said he supports the idea of blocking any Obama nomination to the Supreme Court.

“The Supreme Court is not an extension of the White House,” Mr. Ryan told the Milwaukee Journal Sentinel. “The president has absolutely every right to nominate someone to the Supreme Court, but Congress as an equal branch also has every right not to confirm someone.”

Mr. Ryan said an election year is a poor time to make such an important decision.

“We are knee-deep into a presidential election, and I think the precedent for not filling a Supreme Court vacancy in such a time is justified,” he said.

The speaker also said Mr. Obama’s nominees to the high court, Justices Elena Kagan and Sonia Sotomayor, have shown tendencies to support the president’s overreaching on executive power.

“The president has tried everything he can to empower the executive branch at the expense of the legislative one,” he said. “His Supreme Court nominees have all contributed to that, those that he has placed on the bench already. So not only does Congress have the authority to stop a nominee, it has an obligation to defend itself against a president and a radically altered court that would continue to seize its powers.”

Mr. Obama said Republicans are being hypocritical and that a delay for Supreme Court nominees in election years is “not in the constitutional text.”

“I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there,” he said.

Nearly all of the most vulnerable Senate Republicans support blocking a vote on any nominee, even as Democrats vow to make it a flashpoint in the battle for control of the upper legislative chamber.

Sens. Kelly Ayotte of New Hampshire, Ron Johnson of Wisconsin, Richard Burr of North Carolina, Patrick J. Toomey of Pennsylvania and John McCain of Arizona said they owe it to the American people to delay the nomination process until voters elect Mr. Obama’s successor.

As Mr. Obama pushes ahead with plans to nominate a successor to Justice Scalia, more attention is focusing on Attorney General Loretta Lynch, 56, as a possible candidate. Last year, she became the first black woman to hold the nation’s top law enforcement post.

“The fact that Lynch was vetted so recently for attorney general also makes it practical for the president to nominate her in relatively short order,” said Tom Goldstein, publisher of the SCOTUSblog. “There is some imperative to move quickly, because each passing week strengthens the intuitive appeal of the Republican argument that it is too close to the election to confirm the nominee.”

But Ms. Lynch drew criticism last year for defending Mr. Obama’s executive order on deportation amnesty. She also is under fire for her handling of the Justice Department’s probe into Hillary Clinton’s classified emails. She has resisted Republicans’ calls to appoint a special prosecutor to evaluate the matter.

Nor was her confirmation process free of drama.

A former U.S. attorney in New York, Ms. Lynch was nominated by the president on Nov. 8, 2014, to replace Attorney General Eric H. Holder Jr., shortly after Republicans won control of the Senate in the midterm elections. Democrats offered to wait until Republicans took over the majority in January to consider her nomination.

Her confirmation process then became mired in political feuds over Mr. Obama’s executive action on deportation amnesty and an abortion provision in legislation against human trafficking. As the debate over Ms. Lynch’s confirmation grew more heated, Sen. Richard J. Durbin, Illinois Democrat and a close ally of the White House, said Republicans were making her “sit in the back of the bus.”

The Judiciary Committee voted 12-8 in favor of her confirmation on Feb. 26, 2015. The full Senate confirmed Ms. Lynch by a vote of 56-43 on April 23, 166 days after the president nominated her.

The lone senator who didn’t vote was Ted Cruz, Texas Republican, who had scheduling conflicts. He voted against Ms. Lynch in a procedural vote and said the majority Republicans could have stopped her nomination.

Others on Mr. Obama’s short list include Judge Srikanth Srinivasan, 48, who was approved by the Senate on a 97-0 vote in 2013 for a seat on the U.S. Court of Appeals for the District of Columbia Circuit; Judge Jane Kelly, 51, also given unanimous Senate approval in 2013 to the appeals court; Judge Paul Watford, 48, of the 9th U.S. Circuit Court of Appeals, formerly a law clerk for Justice Ruth Bader Ginsburg; and California Attorney General Kamala Harris, 51, who is running in the Democratic primary to succeed retiring U.S. Sen. Barbara Boxer.

This article is based in part on wire service reports.

• Dave Boyer can be reached at dboyer@washingtontimes.com.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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