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What’s going to happen when Obama nominates a new justice? Top senators weigh in

February 17, 2016 at 6:45 PM EDT
Justice Antonin Scalia’s death has unleashed a contentious political battle over the future of the Supreme Court. While President Obama has made clear he will nominate a candidate, most Senate Republicans say he shouldn't. Judy Woodruff talks to the two high ranking members of the Judiciary Committee, Sen. Dianne Feinstein, D-Calif., and Sen. Orrin Hatch, R-Utah.

JUDY WOODRUFF: The passing of Justice Antonin Scalia has unleashed a political battle of epic proportions that is reverberating from the campaign trail to Capitol Hill. President Obama has made it clear he will nominate someone. But, in the Senate, most Republicans say he shouldn’t, and, if he does, they won’t confirm.

We hear now from two senior members of the Senate Judiciary Committee, which first considers any nominee.

First up, Democratic Sen. Dianne Feinstein of California. She joins us from San Francisco.

Welcome, Sen. Feinstein.

So, what is your response to your Republican colleagues who say this should be left to the next president?

SEN. DIANNE FEINSTEIN, California: Well, I would say this, Judy.

Fourteen nominees have been confirmed in the final year of a presidency in history. And, as a matter of fact, Ronald Reagan presented Judge Kennedy to become Justice Kennedy, and he became that and was confirmed in the last year of Reagan’s administration.

So, it is a well-established fact that this can happen. I mean, I remember back. One of my very first confirmation hearings was Justice Ginsburg. And both the chairman of the committee today, Sen. Grassley and Sen. Hatch, voted for her. And I remember their statements to this day about a president being entitled to his nominees, provided they were qualified, provided they had the requisite skills, the integrity, the moral compass to be enacted.

And they both voted for Justice Ginsburg. I wish we could go back to those days, because what’s happening now is very destructive of the process.

JUDY WOODRUFF: Well, let me just cite quickly what Sen. Hatch has said. And I’m going to be talking to him in just a minute. He said the Senate has never allowed a term-limited president to nominate someone this late in his term.

SEN. DIANNE FEINSTEIN: Well, the record reflects that 14 have been confirmed in the final year. We’re well able to do it in the time that remains.

Now, why not do it? Because what is left are several very important cases, whereby, if there is a tie vote, the appellate court decision takes precedence, therefore, shorting the justice system for whoever it was that was on the other side of the appellate court decision.

And we shouldn’t do that. That, I think, is destructive to what is, you know, a very well-put-together system of justice.

JUDY WOODRUFF: Just quickly, two other questions. Republicans say it was the Democrats who politicized this process with the way they went after Robert Bork, the way they went after Clarence Thomas, that the Democrats started this.

SEN. DIANNE FEINSTEIN: Yes, well, I wasn’t here then, so I really can’t comment.

But whoever it was, it seems to me the time has come to end it. And I had hoped that we were in the process of ending it. We have confirmed 11 judges last year. We have 78 pending. And it shouldn’t be that way. And, you know, Barack Obama has almost a full year left. Are you saying then that his hands could be — should be handcuffed and that he can’t make appointments in that full year of his presidency?

I think that’s a mistake. And one thing, one more thing. What goes around comes around. And I re-read Orrin Hatch’s statement after the Ginsburg hearing. And regardless of what has happened since then, I think he was absolutely right.

And so the ability to process a nominee becomes very important and I think very significant. And I would hope that Orrin would remember that.

JUDY WOODRUFF: Finally, Sen. Feinstein, how far to the center should the president lean in choosing a nominee? Should he try hard to find somebody who is going to appeal to Republicans, as well as Democrats?

SEN. DIANNE FEINSTEIN: Well, I think the answer to that question is yes, if you want to get someone confirmed, I think somebody that has gone through the confirmation process — and there are several who are well-qualified on that score — or somebody that would be seen as outstanding by both sides of the aisle.

And if either one of those were to happen, I think the chances of confirmation would be very high.

JUDY WOODRUFF: Sen. Dianne Feinstein joining us from California, we thank you.


JUDY WOODRUFF: And now to a Republican view, Sen. Orrin Hatch of Utah. He’s also on the Judiciary Committee, and he joins us from Salt Lake City.

Welcome, Sen. Hatch. So the Republicans are in the majority. The president has said he is going to nominate someone to fill the term or to take the place of Justice Scalia. What is going to happen then?

SEN. ORRIN HATCH, Utah: Well, the president has an absolute right to nominate whoever he wants to. And I would vote to protect that right.

But the Senate also has an absolute right to confirm or not to confirm. And so I do support Sen. McConnell in saying, but, look, let’s get it out of this terrible presidential brouhaha that is going on, and let’s get it over to the next year, and be fair to both sides, because what would happen is whoever wins the presidency is going to be able to make this nomination.

Usually, you never nominate anyone during the last year of a president. And the reason for that is because — well, there are many reasons, but one reason is because there’s always a very contested Senate primaries and also election, and, secondly, generally, one side or the other is going to get very, very upset about it.

I would rather get the Supreme Court out of that type of a condition.

JUDY WOODRUFF: Well, we just heard Sen. Feinstein say that there are now 14 examples of nominations to the Supreme Court that took place during the final year of a presidency.

SEN. ORRIN HATCH: Well, in the last 80 years, there haven’t been. And I’m talking about 80 years, and except for — except for Justice Kennedy. But Kennedy was nominated in the prior year. And that was only after a bruising set of fights that resulted in basically a choice of Kennedy that both sides went along with.

JUDY WOODRUFF: Well, let me just come back to you with what not only Sen. Feinstein has said, but so many others, including the president.

He still has almost a year left in office, that it is the duty of the Senate to consider the nomination. Sen. Feinstein pointed out that when you supported Ruth Bader Ginsburg for the Senate, who clearly was someone whose views were different from yours, you said the president…

SEN. ORRIN HATCH: That’s right.

JUDY WOODRUFF: … should — choice should be respected.

SEN. ORRIN HATCH: Well, I think the president’s choice should be respected. That doesn’t mean you have to have — you have to accept that choice.

And, in this situation, just think about it. They are already voting in the primaries. We’re already in full swing in the presidential election, at least the primaries. It’s contentious as can be. It’s the most obnoxious political system, series of problems that I have seen in the whole time I have been in the United States Senate.

JUDY WOODRUFF: Senator, are you saying that — then that the majority of Republican would not hold hearings on the Judiciary Committee?

SEN. ORRIN HATCH: Well, I think if you are not going to allow it to come up in this brouhaha year, where there’s all kinds of infighting and screaming and shouting, yes, I don’t think any reason — there wouldn’t be any real good reason to have hearings.

JUDY WOODRUFF: And is there any precedent for that, for the Senate ever having refused to consider the president’s nominee to the Supreme Court?

SEN. ORRIN HATCH: Well, I don’t know about that, whether there is any precedent.

JUDY WOODRUFF: I mean, when the president himself didn’t withdraw the nomination.

SEN. ORRIN HATCH: Well, we’re talking about Nino Scalia. We’re talking about his successor.

We’re talking about something that every Republican — person, every Republican revered and many Democrats revered, by the way, because they knew what a great jurist he really was. And we’re talking about having a system that doesn’t become the brutalized system that occurred in the Bob Bork nomination, one of the greatest legal minds in the history of this country, and they just brutalized him.

And then look at what they did to Clarence Thomas. The fact of the matter is, I would like to get it out of that type of brouhaha, and get it into the next year, where there should be no brouhaha, and whoever is president should be able to pick whoever that president wants.

JUDY WOODRUFF: So, you are saying, just to be clear, Republicans would sit on this nomination, not act on it?

SEN. ORRIN HATCH: Well, I’m saying the Republicans shouldn’t act on it, because the proper way is to get this done in a way that cools the whole process around electing judges, and in particular justices to the United States Supreme Court.

I just don’t want the court politicized. And this would be the biggest politicization the court in history. And that is saying something, because there have been some other times that certainly would come close to matching this.

But, in all honesty, I just don’t want to see the court denigrated any further than it would be in this very caustic election year with the way things are going right now.

JUDY WOODRUFF: Even with a centrist choice?

SEN. ORRIN HATCH: Well, who knows whether it will be centrist or not. We will have to see.

Yes, the president might pick somebody that everybody can agree with. That’s another matter. I hope he does.

JUDY WOODRUFF: Sen. Orrin Hatch, we thank you very much.

SEN. ORRIN HATCH: Well, thank you.