by Wendy Schiller
“I hope they are fair.” (President Barack Obama March 16, 2016)
With the death of Supreme Court Justice Antonin Scalia, Election 2016 just got much more complicated. The GOP majority leadership in the Senate has threatened not to hold any hearings or votes on Merrick Garland, the Chief Judge of the D.C. Circuit Court of Appeals, who was nominated to fill that vacancy by President Obama on March 16, 2016. They argue that it is too close to a presidential election, and a new president, to consider the nomination and that it should wait until after the new president is elected. Playing politics with Supreme Court nominees is not necessarily new for the U.S. Senate – Democrats and Republicans alike have done so in the past. However, it is nearly unprecedented to consider leaving a seat vacant on the Supreme Court for what will likely be more than a year. And the electoral landscape for the GOP in the U.S. Senate is extremely challenging because the GOP is defending 24 currently held Senate seats, while the Democrats are only defending 10 currently held Senate seats. That means many more Republican Senators will be forced to explain why they refuse to grant even a hearing to the President’s Supreme Court nominee in a year when voters already believe that the Congress – indeed the federal government more generally – is broken.
Amidst that electoral landscape, the chess match between Senate Republicans and the Democratic President gets more complicated because the chair of the Senate Judiciary Committee is Charles Grassley, who is a Republican from Iowa up for reelection in 2016. Until recently it was unclear that a strong challenger would emerge to take on Grassley, who was first elected to the Senate in 1980. But just last week, Patty Judge, who has served as lieutenant governor of Iowa and its state agriculture secretary, announced that she will seek the Democratic nomination to run against Grassley. There are already three other candidates who have announced their intention to run against Grassley, but Patty Judge is widely thought to be the strongest candidate in terms of statewide appeal. Additionally, Hillary Clinton won the Iowa caucuses and is expected to be competitive in that state if she is the Democratic presidential nominee; it is possible that Grassley could face mobilized opposition from women in his home state on at least two fronts.
Merrick Garland served as a private practice attorney, a federal prosecutor who was part of the investigation into the Oklahoma City bombing, and was nominated by President Clinton to the D.C. Circuit of Appeals in 1997 and confirmed in a majority GOP controlled Senate. In fact, he was confirmed by a supermajority of Democratic and Republicans in the Senate, including seven Republicans who are still in the Senate today: Dan Coats (Ind.), Thad Cochran (Miss.), Susan Collins (Maine), Orrin Hatch (Utah), James M. Inhofe (Okla.), John McCain (Ariz.), and Pat Roberts (Kan.). However, Senator Grassley voted against him which means he is on record as opposing him well before this Supreme Court nomination emerged. Grassley maintains, along with the Republican leadership in the Senate, that their refusal to even consider Obama’s nominee has nothing to do with the person but rather the process.
Still, the ripple effect of the pressures on Charles Grassley to hold hearings on Merrick Garland is significant. For now, other GOP senators who are considered vulnerable in 2016, including Kelly Ayotte (NH), Ron Johnson (WI), Richard Burr (NC), Patrick Toomey (PA), and John McCain (AZ), are holding firm against considering any Obama Supreme Court nominee. But some of these senators are potentially facing very strong challengers: current Governor Maggie Hassan in NH, former U.S. Senator Russ Feingold in WI (whom Johnson defeated in 2010), former female State House Representative Deborah Ross in NC; former Congressman Joe Sestak in PA (whom Toomey defeated in 2010), and in Arizona, McCain is facing a potential challenge from Ann Kirkpatrick, a sitting Democratic Congresswoman. These challengers will make the Supreme Court nomination, and the process itself, a campaign issue against these incumbent Republican Senators. The more the landscape looks inviting to mount serious challenges to GOP senators, the greater the Democratic Party’s mobilization effort will be in terms of fundraising and campaign messaging. If Grassley is forced to consider holding hearings in the Senate Judiciary Committee to preserve or strengthen his own reelection chances, the other members of his party running for reelection in 2016 might begin to feel similar pressures. The takeaway for Election 2016 is that the Supreme Court nomination battle may not just be a fight about controlling the direction of the Court, but also about partisan control of the U.S. Senate itself.
Wendy J. Schiller is associate professor of political science and public policy at Brown University. Her most recent book is Electing the Senate: Indirect Democracy before the Seventeenth Amendment.