In the first minutes after the shocking news spread Saturday that Supreme Court Justice Antonin Scalia had died, Senate Judiciary Committee Chairman Charles E. Grassley tried to be reasonable.
It didn’t go well for him.
The Iowa Republican, informed in a phone call from Des Moines Register reporter Jason Noble that Scalia had died, responded honorably, saying he didn’t want to talk about replacing Scalia yet.
The conservative Twitterverse, meanwhile, erupted with demands that the Senate refuse to confirm anybody nominated by President Obama to replace Scalia.
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Ted Cruz, a presidential candidate and a member of Grassley’s committee, said “we owe it” to Scalia “for the Senate to ensure that the next president names his replacement.” Other Republican presidential candidates echoed him.
Senate Majority Leader Mitch McConnell, R-Ky., declared that “this vacancy should not be filled until we have a new president.”
About 40 minutes later, Grassley folded. “The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not confirmed during a presidential election year,” he said. He added that,“It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice.”
Grassley erroneously accepted a conservative claim that no nominee had been confirmed in a presidential election year; Justice Anthony M. Kennedy was, in 1988. Grassley corrected his statement to say “nominated and confirmed.”
Grassley’s swift reversalwas part of an unseemlyspectacle that greeted Scalia’s death. Democrats and Republicans rushed to dig in about whether a successor for Scalia should be considered in the next 11 months – without even a respectful pause.
McConnell’s statement said “the American people should have a voice in the selection of their next Supreme Court justice.”
But the people have already had their say. They re-elected President Obama in 2012. And they elected a Republican majority to the Senate in 2014. That majority has every right to reject Obama’s nominee. But McConnell and his colleagues appear to be asserting that they won’t even consider a nominee.
This is a grim commentary on the current dysfunction in American government. If Republicans refuse to confirm an Obama nominee, they will almost certainly break the record for the longest vacancy on the court since it expanded to nine members in 1869. And that delay – 391 days in 1969-1970 – was because the Senate rejected two of Richard Nixon’s nominees, not because it wouldn’t take up any.
The spectacle began nine minutes after the San Antonio Express-News tweeted Scalia’s death. Sean Davis of the right-wing publication the Federalist tweeted: “If Scalia has actually passed away, the Senate must refuse to confirm any justices in 2016.”
Senate Judiciary Committee member and Texas Republican John Cornyn tweeted a headline: “Schumer in 2007: Don’t confirm any Bush Supreme Court nominee.”
But that’s not what Charles E. Schumer of New York, the incoming Senate Democratic leader, said. “I will recommend to my colleagues that we should not confirm any Bush nominee to the Supreme Court EXCEPT in extraordinary circumstances,” he said.“They must prove by actions – not words – that they are in the mainstream.”
That’s a fine standard. Force Obama’s nominee to prove that he, or she, is in the mainstream. But don’t deny that nominee consideration.
Dana Milbank writes for the Washington Post.