Elections

Could Supreme Court fight put Richard Burr’s Senate seat in play?

North Carolina Sen. Richard Burr says no president and Congress in 80 years have gone through an entire confirmation process to install a Supreme Court justice in the last year of an administration, so Justice Antonin Scalia’s successor should be left to the next president.
North Carolina Sen. Richard Burr says no president and Congress in 80 years have gone through an entire confirmation process to install a Supreme Court justice in the last year of an administration, so Justice Antonin Scalia’s successor should be left to the next president. Associated Press

Sen. Richard Burr of North Carolina was quick to support Senate Majority Leader Mitch McConnell’s declaration that the next president – not President Barack Obama – should fill the Supreme Court vacancy created by the death of Justice Antonin Scalia.

But some experts say that if control of the now evenly divided Supreme Court becomes a dominant issue in this year’s national elections, Burr’s position could put a target on his back and change the complexion of a race in which he appears to be an odds-on favorite to win a third term in the Senate.

In 2014, according to an analysis by the nonpartisan Center for Responsive Politics, outside groups spent $82 million trying to sway the outcome of a battle for North Carolina’s other Senate seat, in which Republican Thom Tillis ousted Democratic Sen. Kay Hagan by some 30,000 votes. It amounted to the biggest outside spending in any Senate race, with $44 million backing Hagan or opposing former state House Speaker Tillis.

If massive outside money is injected behind Burr’s likely Democratic challenger, former state Rep. Deborah Ross of Raleigh, this year’s North Carolina Senate race “could move from not seeming to be competitive to strongly competitive,” said John Aldrich, a Duke University political science professor.

Nathan Gonzales, editor and publisher of the Rothenberg & Gonzales Political Report, said he thought it possible the North Carolina race could become competitive even before Scalia died, due to the state’s changing dynamics.

I think the Supreme Court is a motivating issue for voters on the left and the right – probably more for activists and partisans. I don’t know that it will be a driving force among more casual voters.

Nathan Gonzales, editor and publisher, Rothenberg & Gonzales Political Report

Both Burr and Ross are expected to win primary election races next month, setting up a contest in November. Burr’s reelection campaign, however, closed 2015 with over $6 million in cash, a huge edge over Ross’ $453,000 bankroll.

Burr, who is chairman of the Senate Intelligence Committee and has avoided major controversies while in office, might seem unbeatable at first blush. He is not among six Republican senators considered to be top targets of Democrats, who hope to wipe out the Republicans’ 54-46 Senate majority in a year in which most seats up for election are held by Republicans.

Aldrich called him a “particularly strong” candidate for reelection.

Burr has kept a low profile on Capitol Hill, making it more difficult for so-called independent Super PACS “to find anything negative and exploit it to the hilt,” said Susan Roberts, an associate professor of political science at Davidson College.

With a presidential election in full swing and President Obama considering his legacy, Justice Scalia's untimely death couldn't have come at a more dramatic time in politics. Will the president be able to get a nomination through the Senate?

“He’s not a flamboyant senator,” she said. “And I don’t think there’s anything in his character that could be exploited by a Super PAC.”

Less clear is the degree to which average voters recognize that Scalia’s death means the November election could have tectonic effects on control of all three branches of the federal government, not just the White House and Congress.

I don’t envy Republicans like Burr right now. He has a primary opponent to his right, which doesn’t give him a lot of room to buck the party line. Then he’ll face a more diverse electorate in November, who probably won’t be thrilled with Burr’s adherence to the party line.

Jennifer Duffy, senior editor, Cook Political Report

“The presidency, the Senate and the court,” Aldrich said. “That’s a really unusual combination that might generate a huge amount of interest and unleash unusually large amounts of money.”

If Ross can leverage Republicans’ opposition to filling the Supreme Court vacancy “into raising her profile and raising more money, that could help her in the long run,” Gonzales said. He stressed, though, that the burden rests with her and Democrats to prove she is a viable candidate.

Shortly after word of Scalia’s death hit the news media late Saturday, Burr sent out a Tweet: “The American people deserve a say. The Supreme Court vacancy should not be filled until there is a new president.”

On Monday, Burr said in a phone interview with McClatchy and the Charlotte Observer that when Obama was in the Senate, he watched him vote to stall the nomination of Samuel Alito, then an appeals court judge who now sits on the Supreme Court. He also quoted senior Democratic Sen. Chuck Schumer of New York as arguing that no president should be allowed to have a justice confirmed during the last 18 months of his term.

“For the last 80 years – roughly – no Congress and president have gone through a confirmation on a justice of the Supreme Court in the last year of an administration,” Burr said. “And there’s no better way to resolve the next seat than for it to be part of this election-year campaign.”

A Democratic-dominated Senate voted to confirm Justice Anthony Kennedy in 1988, the last year of Ronald Reagan’s presidency, but Burr stressed that Kennedy was nominated late in the prior year.

Ross issued her own statement on Monday castigating the way Burr and his Republican colleagues announced they would block Obama from installing a successor to Scalia.

Scalia’s death means the November election could have tectonic effects on control of all three branches of the federal government, not just the White House and Congress.

“Within hours after the passing of Justice Scalia, Senator Burr and the Republicans jumped at the chance to play politics yet again by refusing to even consider a nominee for the Supreme Court,” she said.

“At a time when the voting rights of North Carolinians are actively pending before the Court, we need a U.S. Senator who will put the good of our state and our country ahead of partisan political fights,” Ross said in her statement. “Senator Burr needs to stand up for the Constitution and his constituents and do his job.”

North Carolina’s freshman Republican senator, Thom Tillis, issued an even tougher statement than Burr’s on Sunday, accusing Obama of “utter contempt for our nation’s system of checks and balances” and saying the Supreme Court vacancy “would be best left to the next president.”

But on Tuesday, appearing on the Tyler Cralle radio broadcast from Wilmington, N.C., station WAAV, Tillis retreated slightly, saying that if Republicans vow to automatically block any Obama nominee “we fall into the trap of being obstructionists.”

Still, he said that if Obama “puts forth someone that we think is in the mold of President Obama’s vision for America, then we’ll use every device available to block that nomination.”

Funk, of The Charlotte Observer, reported from Charlotte, N.C.

Greg Gordon: 202-383-0005, @greggordon2

Tim Funk: 704-358-5703, @timfunk

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