Facing White House Loss, Conservative Groups Dig In On Judicial Obstruction

As polls show Donald Trump’s chances of winning the presidency continue to dwindle, GOP politicians and their conservative allies are promising that the obstruction of judicial nominees that they have waged during Barack Obama’s presidency will continue well into the presidency of Hillary Clinton.

Yesterday, the Cato Institute’s Ilya Shapiro published an essay arguing that “if Hillary Clinton is president it would be completely decent, honorable, and in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee she names.” He added that it would be constitutional, if not “politically tenable,”  for the Senate to “let the Supreme Court die out, literally.”

The idea that a Republican Senate would refuse to confirm any Clinton nominee to any federal court is extreme, but an increasing number of GOP politicians and conservative activists are latching onto similar messages.

As Brian noted this morning, both Sen. Ted Cruz and Sen. John McCain have recently floated the possibility of a Republican Senate refusing to confirm any person Clinton nominates to the Supreme Court.

This is despite months of Republicans attempting to justify their blockade of President Obama’s latest Supreme Court nominee, Merrick Garland, by saying that the decision of whom to install on the court should be left to the next president. Cruz himself said back in February, “Let the election decide it. If the Democrats want to replace this nominee, they need to win the election.”

The Senate Republican blockade of Garland’s nomination has been driven in part by outside pressure groups that spent big in the effort to prevent President Obama from naming a third justice to the high court. Their change in message reflects the changing talking points of these outside groups.

One of the most prominent groups pressuring Republicans to maintain their obstruction of judicial nominees is the Judicial Crisis Network (known during the George W. Bush administration as the Judicial Confirmation Network), which soon after the death of Justice Antonin Scalia released an ad arguing that “the American people should decide” who appoints the next Supreme Court justice. “You choose the next president, the next president chooses the next justice,” the ad said.

But after Donald Trump became the Republican presidential nominee and the prospects of his candidacy continued to look dismal, the Judicial Crisis Network changed its tune. At the Values Voter Summit in September, chief JCN spokeswoman Carrie Severino abandoned her group’s “let the people decide” message and declared that if Clinton is elected, the Senate GOP could keep the court at eight justices “for a while.”

“I think the court could really function as long as it needed to with eight justices,” she said.

Another chief driver of the GOP’s judicial obstruction, the Heritage Foundation, has been deploying a similar message, sending multiple emails to its supporters over the past two weeks promising to “ halt and reverse the liberal takeover of the courts”:

The Heritage Foundation has developed a strategy to help lawmakers thwart these nefarious schemes and we need your help to organize a concerted resistance to any liberal judges. Heritage will:

  • Recommend conservative judges the next president can nominate.
  • Organize public resistance to left-wing judges.
  • Give Senators the procedural tools to block any liberal nominee.
  • Collaborate with our sister organization Heritage Action so that they can apply grassroots pressure to block all liberal nominees.

The group also promises that it has found procedural tools to help Republican senators block federal judicial nominees even if they do not retain the Senate majority. Just a “small number” of senators, it says, can prevent a vote on a nominee:

A conservative Senate majority is not required to block a liberal nominee.

In fact, according to a new Heritage analysis of the Constitution and Senate procedure, it doesn’t require any more than a small number of principled conservatives to hold the line. We can use procedural strategies to block a nominee and even prevent the use of the “nuclear option” to force through a nominee by majority vote.