KELLY MCEVERS, HOST:
The balance of the Supreme Court is certainly in play this election year. Republicans have blocked President Obama's nomination of Merrick Garland to replace the late Justice Antonin Scalia. They have said it should be the next president who fills that vacancy. Well, yesterday, Arizona Senator John McCain, who is up for re-election, went a step further.
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JOHN MCCAIN: I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president...
DOM GIORDANO: OK.
MCCAIN: ...Would put up.
MCEVERS: That was from a radio interview on WPHT's "Dom Giordano Program" in Philadelphia. NPR legal affairs correspondent Nina Totenberg is with us now to talk about this. Hello.
NINA TOTENBERG, BYLINE: Hi.
MCEVERS: So I guess the first question is what was McCain saying? I mean, it seems to go beyond what Republicans have been saying all along.
TOTENBERG: Well, it doesn't square with what they've been saying. Eight months ago, when Justice Antonin Scalia died, the Republican leader of the Senate, Mitch McConnell, announced that Republicans would block any movement on any Obama nominee until after the election and after a new president was in office and could pick the successor to Antonin Scalia. McCain has gone much further here and said basically he's going to vote almost against anybody that Mrs. Clinton might pick.
Now, having said that, we should note that McCain's office tried to walk this back a bit. McCain aides said later that the senator believes you can only judge people by their record and, quote, "Hillary Clinton has a clear record of supporting liberal judicial nominees." The aide went on to add that McCain, quote, "will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications."
MCEVERS: So then why would John McCain say this, that the Republicans will oppose any Clinton nominee to the Supreme Court?
TOTENBERG: Well, you know, he's said a lot of unpleasant things about Donald Trump lately. And he's in a conservative state. And one suspects that he's getting some pressure from the right. In addition to that, John McCain has been known to let off steam occasionally.
MCEVERS: So if this is how Republicans are planning to deal with judicial nominations, though, if Hillary Clinton is elected, what recourse would Democrats have?
TOTENBERG: Well, for one thing, they could strengthen their hand by winning control of the Senate so they could at least be able to bring nominations to the floor, which they can't do right now. But then Republicans could still filibuster because you can still filibuster Supreme Court nominees. But if there's any whiff of that kind of a filibuster, I would think that the Democrats would do what they did for lower-court judges a few years ago, which was abolish the filibuster. And ironically, Senator McCain played an important role in that.
There were three vacancies on the U.S. Court of Appeals for the District of Columbia. Republicans were blocking all of the nominations. The Democrats were ready to get rid of the filibuster. McCain worked out a deal, which the Democrats agreed to, which is the Republicans would let one of these nominees go through and then the Democrats would not upend the filibuster.
Well, McCain - as I said, they worked out the deal. McCain brought it to his caucus and they said, no way. And the Democrats then abolished the filibuster for lower-court judges and were able to move them quite expeditiously until they lost control of the Senate.
MCEVERS: That's NPR's Nina Totenberg. Thank you very much.
TOTENBERG: Thank you.
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