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Supreme showdown: Replacing Scalia will put divided government to the test

February 14, 2016 at 6:02 PM EDT
Although President Barack Obama has the time and desire to appoint a new justice to the Supreme Court, Republican leaders have indicated the vacancy should be filled by the next president. NewsHour's political director Lisa Desjardins joins William Brangham to discuss the brewing showdown.
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WILLIAM BRANGHAM: President Obama’s term expires in 342 days, and, on average, his two Supreme Court picks, Elena Kagan and Sonia Sotomayor, required 76 days from nomination to confirmation.

So, the president has the time and, he says, the desire to appoint someone new. But, already, Republican Senate Majority Leader Mitch McConnell has indicated he’s not inclined to schedule confirmation hearings or a vote for a new nominee, because he says the vacancy should be filled by the next president, not the current one.

For more on this brewing showdown, I’m joined from Washington by the “NewsHour”‘s political director, Lisa Desjardins.

Lisa, welcome. Thanks for being here.

We saw already, just a few hours after Scalia’s passing, the partisan fight started to break out. From your perspective, how big of a showdown do you think this is going to be?

LISA DESJARDINS: This is a massive showdown, William.

It’s going to affect Congress. It is going to affect the presidential election. It is really a great tremor in American politics, not only because of the court cases that I know you and our viewers are familiar with, but because of the divide in Congress itself.

And I think Mitch McConnell coming down so quickly, as you said, indicating that he ask not even going to receive a nomination from a sitting president is really a declaration of political war. And now the White House has to consider how it’s going to respond.

WILLIAM BRANGHAM: I mean, can the Republicans, if they so choose, really block a nominee? If Obama puts someone forward, can they really block that nominee for virtually an entire year?

LISA DESJARDINS: They absolutely can.

Under Senate procedure, under Senate rules, it requires, first of all, now three-fifths, or 60 votes, for nominations of Supreme Court judges to move forward. But then to even get past that, it requires a basic majority vote of the Senate to approve any Supreme Court nominee. Since they have a few votes more than a majority, Senate Republicans have the power to block any nominee they so choose.

And, you know, what I think has happened in the past here, William, is there’s been sort of compromise choices perhaps, behind-the-scenes negotiations, but in an election year, where Republicans think they have a very strong shot at winning the presidency, and then, moreover, William, at potentially losing the Senate, they realize that they think their best shot to get another seat on the Supreme Court is to wait and delay this as much as possible.

The president now has a sort of tricky political game to play. Does he come up with the nominee that seems completely unfair for Republicans to not even consider, or does he do some — does he come up with a nominee who he really wants? And he’s got a number of options here. And it’s really not clear how this gets resolved any time soon.

WILLIAM BRANGHAM: Have we heard what Hillary Clinton and Bernie Sanders have said about this yet?

LISA DESJARDINS: Right. No surprise, the two Democrats want the Democratic president to pick a Supreme Court justice and they want it approved. Bernie Sanders says the Constitution clearly gives the president this power.

Hillary Clinton says the Republicans are outrageous, in her words. They’re pushing back very hard.

WILLIAM BRANGHAM: So, Lisa, is there a precedent for this, for — for a Supreme Court fight to break out in the middle of an election year?

LISA DESJARDINS: Well, this is what is fascinating, William.

There is absolutely no modern precedent going back to the beginning of the 20th century for a Supreme Court justice dying in an election year, in which a president, a two-term president is retiring. So, you have the situation here that is unprecedented.

We do have a couple of precedents in terms of vacancies in election years. For example, we had one with President Johnson, where he was trying to confirm Abe Fortas to be the chief justice of the Supreme Court. That was blocked until Richard Nixon became president.

So, the Senate has acted to block a nominee. But, in that case, William, interestingly enough, the Supreme Court didn’t lose a member, because the sitting chief justice stayed, kept the seat. So, there really is not a precedent here for potentially an open seat for almost a year in between presidents. That would be something completely new.

WILLIAM BRANGHAM: All right.

The “NewsHour”‘s political director, Lisa Desjardins, thanks so much.

LISA DESJARDINS: My pleasure.

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