Not long after President Obama yesterday identified the judge he wants to fill the ninth Supreme Court seat, Republican senators facing tough re-election bids yielded some ground over their party’s view that the nomination should not be considered.
But don’t expect any GOP movement to embrace the nominee.
As U.S. Appeals Court Judge Merrick Garland heads to Capitol Hill today to start making the rounds, some of Democrats’ top electoral targets, including Sens. Mark Kirk of Illinois and Kelly Ayotte of New Hampshire, said they would be open to meeting with the judge, who was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit in 1997 on a 76-23 vote, with the backing of seven current GOP senators.
Asked about the possibility of a visit, Ayotte said: "If he asks me … out of courtesy and respect, I’ll meet with him."
But she also declared in a written statement that the Senate "should not move forward with the confirmation process until the people have spoken by electing a new president."
Kirk, who is gearing up for an expensive re-election fight in Illinois, said he would assess Garland "on his records and qualifications."
"When I climbed the 42 steps of the U.S. Capitol and returned to the Senate following my stroke, I reaffirmed my commitment to represent the people of Illinois in an independent and thoughtful manner, free from the partisanship and political rancor that too often consumes Washington," Kirk said.
With public opinion polls suggesting voters would be less likely to re-elect senators who stand in the way of Obama’s nominee, challengers yesterday used Garland’s nomination as an opportunity to attack the incumbents they are trying to defeat (E&ENews PM, Feb. 24).
New Hampshire Gov. Maggie Hassan (D), who is expected to face Ayotte in November in one of the most competitive Senate races this cycle, promoted a petition calling on Senate Republicans to consider Garland.
"Senator Ayotte has decided to cater to her party leaders and her special interest backers by playing politics with justice for millions of Americans. Ayotte’s obstruction truly represents Washington dysfunction at its worst, and the people of New Hampshire deserve better," Hassan said in a statement.
Illinois Rep. Tammy Duckworth, who on Tuesday claimed the Democratic nod to take on Kirk in November, used the debate over the Supreme Court nomination as a way to link Kirk to current GOP presidential front-runner Donald Trump — a tactic Democratic strategists are broadly using in several Senate races (E&ENews PM, March 15).
Duckworth highlighted Kirk’s past statements that he would support the eventual Republican presidential nominee and noted that Trump would select the next Supreme Court justice if he wins the White House.
Other Republicans up for re-election maintained yesterday that the open seat on the court created after Justice Antonin Scalia’s Feb. 13 death should remain vacant. Echoing Senate Minority Leader Mitch McConnell (R-Ky.), Sens. Roy Blunt of Missouri and John McCain of Arizona reiterated their opposition.
"The last time the American people spoke [in 2014], they elected a Republican majority to the Senate to act as a ‘check and balance’ on President Obama’s liberal agenda — a responsibility I cannot ignore. We must allow the people to play a role in selecting the next lifetime appointment to the Supreme Court," McCain said.
‘I’m hearing a lot back home about this’
Sen. Rob Portman, a moderate Ohio Republican who is locked in a tough re-election fight against former Gov. Ted Strickland (D), acknowledged that the Supreme Court vacancy is a frequent topic as he campaigns.
"I’m hearing a lot back home about this — from both sides," he told reporters yesterday. "I mean, the intensity level is high on the Republican side, too, as well. So I don’t know what other members are hearing, but I was in seven counties in the last four days. What I hear on both sides is very strong views."
Portman continued, "The sense I get on the ground is there are people who just feel very strongly that when you get to the last year and you get the opportunity to have your voice heard through a presidential campaign, let that happen, and let the chips fall where they may. It could be Hillary Clinton, and in that case, she’ll have her nominee, and if it’s [Ohio Gov.] John Kasich — my guy — it’s him."
But he added that he doesn’t think it’s the biggest priority for Ohio voters.
"My pollsters tell me that it’s not at the top of the list, but I don’t know," Portman said. "I haven’t looked at those numbers carefully enough."
Echoing a point that McConnell makes almost daily on the Senate floor, Portman said he’s focused on adding to the string of GOP legislative victories, including by working to pass the energy efficiency bill he’s labored on for years with Sen. Jeanne Shaheen (D-N.H.), as well as the Flint aid package, on which he’s a co-sponsor.
"I think you’re going to see the Senate moving on as we have been, on a lot of legislation that is important to people," he said. "And that sort of takes away from some of what apparently the Democratic argument is, which is that the Senate isn’t doing its stuff. We certainly are doing a lot more than under the previous management."
Portman said he hasn’t heard from the White House seeking a meeting with Garland but said he would be willing to do so.
"I don’t think it will be a particularly good use of his time because I plan to talk to him about why I’m taking the position I’m taking on a principled basis," the senator said. "But I meet with people all the time, and if he wants to meet, I’ve said I’m willing to meet with him."
Nomination fight sparks attack ad in Pa.
Another potentially vulnerable incumbent, Pennsylvania Sen. Pat Toomey (R), said he would be happy to carefully consider Garland’s nomination — should he be nominated again by the next president. Asked yesterday about the possibility of a confirmation during a post-election, lame-duck session, Toomey told E&E Daily: "I’m not thinking that far ahead. That’s a long way down the road."
The trio of Democrats seeking to take on Toomey in November unanimously criticized the first-term senator over Republican refusals to schedule confirmation hearings for Garland.
Former White House Council on Environmental Quality Chief Katie McGinty released a new 30-second ad yesterday that highlights remarks she made at the Keystone Progress Summit last month.
"In Pat Toomey’s obstructionism, what we see is a deliberate effort to try to make the Supreme Court an extension of Republican partisan politics," McGinty states in the footage.
In a statement, former Rep. Joe Sestak (D-Pa.) similarly accused Toomey of "obstructing justice," also highlighting a vacant judicial slot in the 3rd U.S. Circuit Court of Appeals, which has jurisdiction over Pennsylvania, Delaware and New Jersey.
"With so many pressing issues before the Court like the Voting Rights Act, protecting women’s right to choose, reversing Citizens United and affirming the need to regulate polluters, it is time for Pat Toomey to abandon his obstructionist tactics of ‘delay and deny’ and fulfill his duty to the people of Pennsylvania by agreeing to at the very least consider the qualifications of Judge Merrick Garland," Sestak said.
The third Democratic candidate, Braddock, Pa., Mayor John Fetterman, addressed Toomey on his campaign’s Twitter account, writing: "[I]t’s not too late to stand on the right side of history! #DoYourJob and give Chief Judge Merrick Garland a fair hearing."
‘Liberal Obama puppet’
Garland started making phone calls to some Senate offices yesterday, according to reports.
Wisconsin Sen. Ron Johnson (R) told E&E Daily he would answer the phone, as he generally does. As for having a conversation about the nomination: "I haven’t had the call."
Johnson has repeatedly said that Scalia’s former seat should remain vacant for eight months to give voters "a voice in the direction of [the] court."
Former Sen. Russ Feingold, the Democrat who is looking to retake his former seat from Johnson, praised Garland for his "long, distinguished record," adding: "The Supreme Court is essential to our democracy, and we cannot allow partisan politics to shut it down."
Feingold also highlighted a Milwaukee Journal Sentinel op-ed urging Wisconsin residents to contact Johnson to urge the senator to push for confirmation hearings.
"Senate Majority Leader Mitch McConnell (R-Ky.), Johnson and other Republicans who have made it their job to stand shoulder to shoulder against Obama should consider this: Do they really want Donald Trump or Hillary Clinton to make the next selection to the court?" the newspaper wrote.
In the crowded open seat race to succeed Florida Sen. Marco Rubio (R), candidates likewise split along party lines — with Republicans asserting the president no longer represents the American people.
"Don’t let Barack Obama replace Justice Scalia with a liberal who will take away 2nd Amendment rights!" warned Republican Rep. Ron DeSantis, who is one of nearly a dozen GOP primary candidates, along with Rep. David Jolly.
Real estate developer Carlos Beruff (R) characterized Garland as a "liberal Obama puppet."
Lt. Gov. Carlos ópez-Cantera (R) encouraged Republicans to block any nominee, stating: "This President has proven we cannot trust him to uphold the Constitution, and we cannot trust that a nominee he puts forward will rule in accordance with the Constitution."
Democratic Florida Rep. Patrick Murphy, who is competing with Rep. Alan Grayson for his party’s Senate nod, posted his own petition urging Senate action.
Meanwhile, Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska), who is up for re-election but does not currently have a serious challenger, signaled that a meeting with Garland was unlikely but not out of the question. She said she has not been asked for a meeting yet.
"I’m not on the committee," Murkowski told E&E Daily last night. "If the Judiciary Committee moves him out, then that’s certainly something I would consider, but it doesn’t look like you’re going to have an opportunity to move him out."
Asked if she’s felt pressure at home on the nomination, Murkowski — who was defeated by a conservative challenger in the 2010 GOP primary, only to win re-election as a write-in candidate — said she’s been focused on trying to revive the bipartisan energy bill that’s been stalled over Flint aid and other issues.
"I’ll be honest with you," she said, "I haven’t checked with folks back home because I’ve been spending all my day trying to work through our energy/Flint [agreement.]"