Obama cites Constitution in Supreme Court nominee battle

President pledges to nominate a successor to Scalia despite 'obstructionist' element in Senate.

“The Constitution is pretty clear about what is supposed to happen now,” Obama said during a news conference after a meeting in California with leaders of Southeast Asia. He said the Constitution demands that a president nominate someone for the court and the Senate either confirms or rejects.

“There’s no unwritten law that says that it can only be done on off years,” Obama said. “That’s not in the Constitutional text.”

But Obama — who defended his own role in an attempt to block a confirmation vote of Samuel A. Alito Jr. in 2005 — said he understood the political stakes of a nomination that could change the balance on the court. “I understand the pressure that Republican senators are now under,” he said. “This would be a deciding vote.”

Obama’s remarks were his first extensive public reaction to the political forces unleashed by the death last weekend of Scalia, and they offered a glimpse of how he intends to use the power of the presidency to raise pressure on Republicans to hold hearings on whoever he nominates for the court.

Grassley backtracks slightly

The president spoke hours after Sen. Charles E. Grassley, R-Iowa and chairman of the Senate Judiciary Committee, said that he had not ruled out holding hearings on Obama’s eventual nominee to replace Scalia on the Supreme Court.

Grassley’s comments were a modest backtracking of what he said over the weekend, when he concurred with Sen. Mitch McConnell, the Senate majority leader, as well as several other Republican senators, who said the Senate should take no action on Obama’s nominee and the vacancy ought to be filled by the next president.

On Tuesday, Grassley indicated some leeway. Although he said he still believes that the next president ought to name Scalia’s replacement, “I would wait until the nominee is made before I would make any decisions,” Grassley said, according to Radio Iowa.

A ‘profile in courage’ moment

Grassley’s staff members did not say why Grassley, who is in Iowa during a congressional recess, stepped ever so slightly back. But Grassley, who has long prided himself on embodying the good governance ethos of Iowa, found himself the subject of criticism on Tuesday in an editorial in the state’s largest newspaper, The Des Moines Register.

“This could have been a ‘profile in courage’ moment for Sen. Grassley,” the paper wrote before Grassley’s remarks. “This was an opportunity for our senior senator to be less of a politician and more of a statesman. It was a chance for him to be principled rather than partisan.”

'Fall into the trap'

At least one other Republican in his home state for the recess appeared worried about a potential backlash if the Senate refuses to consider Obama’s nominee.

Sen. Thom Tillis, R-N.C., told a local radio show that Republicans “fall into the trap of being obstructionists” if they reject any nominee “sight unseen.”

Other Republicans feared the spectacle of Supreme Court hearings in the middle of an unpredictable presidential campaign. McConnell had hoped to keep a dutiful schedule of bland bills and low drama in the Senate this year.

“Most every Republican has to feel like in this really robust election year with all the fighting and back and forth going on, that this is not the time to have a battle over a Supreme Court nominee,” Sen. Orrin Hatch, R-Utah and a senior member of the Judiciary Committee, told NPR Tuesday.

Pressure on multiple fronts

In his remarks in California, Obama acknowledged the endless partisan warfare: “We’ve almost gotten accustomed to how obstructionist the Senate has become when it comes to nominations.”

Whether Grassley would be able to hold hearings when McConnell and others are balking is an open question. McConnell has emphasized that committee chairmen have considerable autonomy under his leadership. But Grassley will no doubt feel pressure on multiple fronts, including from Democrats, with whom he has had good relations on the committee.

Some quickly seized on Grassley’s remarks as evidence of what they think will be growing pressure on Republicans to at least hold hearings on any nominee Obama brings forward.

“Sen. Grassley’s statement indicates that our Republican colleagues are moving, as they must eventually, toward obeying the Constitution in holding hearings and a vote on the President’s Supreme Court nominee,” said Sen. Richard Blumenthal, D-Conn. and a member of the Judiciary Committee. “Rejecting this Constitutional obligation will rightly prompt public outcry and outrage — eventually forcing the right outcome. The Republican leadership can spare the court and the country damage by doing the right thing.”

Washington advocacy machine cranks up

Even as Obama spoke, the Washington advocacy machine had already roared to life in anticipation of the most consequential Supreme Court fight in a generation.

Representatives from dozens of liberal organizations convened a conference call Tuesday afternoon to coordinate the attacks on Republicans for refusing to even consider a nominee. The groups plotted outreach to opinion makers, op-ed articles and direct lobbying, according to several who participated.

“This is going to be of a different order,” said Frank Sharry, the executive director of America’s Voice, an immigration group which was represented on the call.

If history is a guide

Some editorial boards of newspapers in purple states around the country criticized Republican incumbents who had sided with McConnell, a calculation that was considered when most of them opted to take that position.

“Regrettably, Republican Sen. Rob Portman of Ohio, who is seeking re-election this year in a state that Mr. Obama won twice, has adopted his party’s indefensible line,” read an editorial in The Toledo Blade. “On Monday, Sen. Portman cited a non-binding ‘rule’ that says the Senate should not confirm a justice during a presidential election year. But in 1988, the Democratic-controlled Senate confirmed Justice Anthony Kennedy during President Ronald Reagan’s final full year in office.”

Obama also dipped into the recent history of the Senate, noting the long history of each party opposing judicial nominees, and acknowledging his own opposition to Alito. “I think what’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party,” he said. But, he added, “What is also true is Justice Alito is on the bench right now.”

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