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Will Senate Reconsider Whether To Act On Supreme Court Nominee?
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Will Senate Reconsider Whether To Act On Supreme Court Nominee?

Politics

Will Senate Reconsider Whether To Act On Supreme Court Nominee?

Will Senate Reconsider Whether To Act On Supreme Court Nominee?
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President Obama has nominated Judge Merrick Garland to the Supreme Court, but the Senate had said it would take no action on a nominee from the Obama administration.

RENEE MONTAGNE, HOST:

And we now know who President Obama has chosen as his nominee for the Supreme Court. It is Judge Merrick Garland. He will make the announcement shortly in the Rose Garden. Joining us now to discuss the Senate's politics around that nominee - or that will be around that nominee - is NPR congressional reporter Susan Davis. Good morning.

SUSAN DAVIS, BYLINE: Good morning, Renee.

MONTAGNE: First of all, talk to us a little bit about Merrick Garland. Who is he?

DAVIS: OK, Merrick Garland is the chief justice of the D.C. Court of Appeals. He has served on that court since 1997. He became the chief justice of it in 2013. As Nina Totenberg has reported, he is seen as a moderate liberal. He is widely respected among Republicans and Democrats alike.

He's 63 years old, so he's a bit older than some of the other nominees that the president was considering. And he's a bit of a surprise choice as the president has often tended to make diversity on the court a priority. He is a white male. He was the only white male in the final three contenders on the short list.

So it was a bit of a surprise. But what is not a surprise is it is not going to change the calculation in the Senate that they are not going to consider this nominee prior to the election.

MONTAGNE: And he will be entering into a very tough fight here - an unusually tough fight. Senate Majority Leader Mitch McConnell announced hours after Antonin Scalia's death that the Senate would take no action on a nominee given to them by President Obama. Here's what he said last month.

(SOUNDBITE OF ARCHIVED RECORDING)

MITCH MCCONNELL: In my view, and I can now confidently say the view shared by virtually everybody in my conference, is that the nomination should be made by the president the people elect in the election that's underway right now.

MONTAGNE: So the next president, who, of course, the Republicans hope will be a Republican. Pretty decisive - can they stick with that position?

DAVIS: You know, Mitch McConnell is not known for backing down from a position once he takes it. Republicans are almost in lockstep saying that this is something that the voters need to weigh in before the election. We are in an incredibly politicized moment of time. Democrats, on the other hand, say this is an absurd standard, that its obstructionist and that it will set a dangerous precedent for future nominations to the Supreme Court.

MONTAGNE: And another element is that control of the Senate is also up for grabs this year. Are they scared at all about the political repercussions of denying even a hearing to a nominee?

DAVIS: We haven't seen it yet. Only one of the senators that is up in a competitive race so far, Senator Mark Kirk of Illinois, has questioned the strategy. He said he would be open to considering a nominee. The rest are united behind McConnell.

Now, remember because it is an election year and the Senate is up for grabs, Republicans are particularly interesting in keeping their base voters motivated. And there's a risk inherent in letting President Obama decide who gets to replace Antonin Scalia, who was an iconic conservative. And, you know, I've talked to Senate Republican campaign strategists who say that while this is an issue that energizes Washington, it is not a highly motivating issue to everyday voters, swing-independent voters, particularly when you ask them what their concerns are, it never outweighs things like jobs or national security.

Now, Democrats are certainly going to try and make this an issue in the Senate race. I think if you want to watch a race, Iowa's senator, Chuck Grassley, he's the chairman of the Judiciary Committee, which plays a critical role in approving Supreme Court nominees. And they are going to very much try and make this an issue in his race.

MONTAGNE: Well, Sue, aren't there any dealmakers left in the Senate that could find some middle ground to consider a nominee? I think I know the answer to that.

DAVIS: (Laughter) Well, the shortlist - well, the short answer is no, and think about this. In 2005, when we also had a very heightened, politicized moment over Supreme Court judges, senators formed what was known as the Gang of 14. It was a bipartisan group of senators that said we are not going to shut down the Senate over judicial nominations. And they managed to not only get through lower court nominations, but this is a process that also allowed Justices Alito and Roberts to get through the confirmation process with tough hearings. But it was never in doubt that they were going to get a vote.

There are only three members of the Gang of 14 left in the Senate. That is Senator Lindsey Graham, Senator John McCain of Arizona and Senator Susan Collins of Maine. You know, you ask them, you know, is there room for another gang in the Senate? And they've all said no, it's become too polarized, too divisive. And in an election year - John McCain is up - also up for re-election this year - there's just no appetite for this fight.

MONTAGNE: So we can look ahead to at least a stall in terms of this nominee in just the few seconds we have left.

DAVIS: Yes, and one option is they say the voters have to decide. If depending on the outcome of the election Republicans will still control the Senate in a lame-duck session, it is not ruled out that they could potentially do it there before Barack Obama leaves office.

MONTAGNE: Thank you.

DAVIS: Thank you.

MONTAGNE: That's NPR congressional reporter Susan Davis.

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