A looming fight over a new Supreme Court justice could upend legislative work in the Senate, casting fresh doubts on whether Congress will be able to pass any spending bills or a bipartisan energy package this year.
"Getting things done in the Senate in an election year is difficult without the added burden of a major fight on a Supreme Court justice," former North Dakota Democratic Sen. Byron Dorgan told E&E Daily.
Advancing legislation in the Senate requires 60 votes to overcome the threat of filibuster, a tactic minority parties have increasingly used over the past decade to bottle up legislation. Republicans currently control 54 seats and would need at least modest cooperation from Democrats to move bills.
Any spirit of bipartisanship, though, would likely fade fast if the Senate hurtles toward what’s expected to be a prolonged partisan fight over a replacement for the late Supreme Court Justice Antonin Scalia.
GOP leaders are already arguing that the next president should make the pick, a political gamble that assumes voters will elect a Republican president and keep the Senate in the party’s control in November.
Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Judiciary Chairman Chuck Grassley (R-Iowa) wrote last week in a Washington Post opinion piece, "It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia."
Senate Democrats have blasted those tactics as obstructionist and say it would be unprecedented for the Senate to postpone consideration until after a new president is sworn in.
Senate Minority Leader Harry Reid (D-Nev.) said he expects a nominee from the president in about three weeks and, in a challenge to the GOP, said he expects that the "very superior" candidate will be confirmed. He did not say how he would respond if Republicans blocked consideration.
Obama has reached out to McConnell and Grassley over the telephone to say he will make a nomination and expects the Senate to vote on it. The president has said little about who that candidate might be but spent at least part of the weekend reviewing an initial list of potential Scalia replacements.
The biggest casualty
The biggest casualty of a Supreme Court standoff could be the 12 annual spending bills, a priority for Republicans who see the measures as their best option for challenging White House policies — including environmental regulatory rules. GOP optimism on moving the measures has been buoyed in part by last year’s bipartisan budget deal that set an overall fiscal 2017 discretionary spending level.
"We all thought the appropriations would be smooth sailing this year, but this really could complicate it," said G. William Hoagland, a former Senate Budget Committee director who now is a senior vice president for the Bipartisan Policy Center.
If Democrats opted to block spending bills to protest a lack of action on a Supreme Court nominee, Hoagland said, Congress would have to pass a stopgap spending measure this fall to avoid a government shutdown. It would stretch beyond the elections, could force another omnibus spending package, and depending on the election’s outcome might even lead to the bipartisan cap being scrapped, he added.
Stan Collender, a budget expert who works for Qorvis, said the spending bills would be the most likely casualty because McConnell wants to pass them for the first time in two decades to show "he can get the trains to run on time."
Collender noted that Reid has little worry about being blamed as an obstructionist because he’s retiring at the end of the year. Moreover, Democrats are only defending 10 Senate seats this fall, compared to 24 for Republicans.
Collender believes the spending bills could also serve as potential leverage for Democrats to at least have the GOP hold hearings on a court nominee. For Democrats, hearings could be a victory, even without a floor vote, if they allow the party to mobilize its general election base, he noted.
Republicans have not said whether they will hold confirmation hearings, which have a history of stoking partisan tensions. The prospect for hearings is likely to be widely discussed within both parties this week, with the Senate due back today from the weeklong Presidents Day recess.
Energy bill uncertain
An early bellwether of the legislative outlook will be if the Senate returns this week to a broad energy bill that was sidelined earlier this month in a partisan dispute over attaching federal aid for the water crisis in Flint, Mich.
Thus far, there is no sign of a deal on Flint, with Democrats seeking a far broader response than Republicans. A compromise on Flint would signal that not all bipartisan efforts have been sidetracked by the court fight.
"I don’t think that energy legislation would be singled out for retribution in any way, but it could just be the case that everything that is discretionary gets submerged in the tsunami" of a court fight, Dorgan said.
Kevin Book, managing director at ClearView Energy Partners, was far from bullish in an email to clients last week on the prospects for the energy legislation. He said he does not expect Senate Republicans to compromise on a nominee until they know who will win the White House and if they will retain the Senate.
"Senate Democrats, for their part, would probably not choose to cooperate with Republicans on otherwise-consensus issues (i.e., the Energy Policy Modernization Act) if they believe the GOP is stalling the nomination," he added.
Any Senate energy bill would also still need to be reconciled with a narrower House version that passed late last year.
Reporters Geof Koss and Hannah Hess contributed.