Nominating appeals judge could grease Senate’s wheels

Source: Hannah Hess, E&E reporter • Posted: Friday, February 19, 2016

How far to the center President Obama should lean when choosing a Supreme Court nominee remains an open question, with Senate Republican leaders still saying any pick would be dead on arrival.

Without naming names, Democrats who sit on the Senate Judiciary Committee have hinted that a candidate who has already been through the rigorous confirmation process may be more likely to move forward on the merits.

“Some of the potential nominees may have already been screened and vetted thoroughly in the course of their nomination for the courts of appeals,” Sen. Richard Blumenthal (D-Conn.) said yesterday on a conference call. “They may have already undergone a lot of this scrutiny, and the time period may be shorter.”

The 166 days that Republicans spent slow-walking Loretta Lynch’s nomination to be attorney general, amid loud criticism from Democrats and the White House, may not bode well for the fate of other contentious nominees as long as Sen. Chuck Grassley (R-Iowa) holds the Judiciary Committee gavel.

Though Grassley has backed off his initial resistance to holding a hearing on a Supreme Court nominee to replace the late Justice Antonin Scalia, scrutiny of Obama’s pick would likely be intense.

Grassley submitted 221 pages of questions last year for Lynch, who is now a possible candidate for the high court slot. The chairman continued to hold out back then, saying her answers weren’t sufficient.

“I know there’s a lot of pressure to answer these questions quickly, but that doesn’t excuse the incomplete answers,” Grassley said in February 2015, as partisan debate around the nomination escalated. The Senate confirmed Lynch that April.

All week, Republicans have praised Scalia’s skill as a jurist. His defense of the original meaning of the Constitution is unmatched among conservatives, and a successor to the court needs to preserve that position, they say.

“That means that we need to have a juggernaut of a conservative to replace Scalia,” Sen. Tim Scott (R-S.C.) said earlier this week.

Confirmation chances ‘very high’

“The PBS NewsHour” show asked Sen. Dianne Feinstein (D-Calif.) last night whether the president should try hard to find somebody who is going to appeal to both Republicans and Democrats (Greenwire, Jan. 12, 2013)

“Well, I think the answer to that question is yes, if you want to get someone confirmed,” Feinstein said.

“I think somebody that has gone through the confirmation process — and there are several who are well-qualified on that score — or somebody that would be seen as outstanding by both sides of the aisle,” Feinstein said. “And if either one of those were to happen, I think the chances of confirmation would be very high.”

The Senate’s most senior Republican, Utah’s Orrin Hatch, acknowledged Obama might pick somebody that everybody can agree with. But he was adamant yesterday that the nominee should not get a hearing or a vote on the Senate floor before the November election, saying he didn’t want to “denigrate” or “politicize” the court.

Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) yesterday joined the growing list of moderate GOP senators who are breaking ranks with the party’s leadership. She told local reporters that the nominee should get a hearing, though “that doesn’t necessarily mean that that ends up in a vote.”

‘Mainstream nominee’

If the Judiciary Committee considers a Supreme Court nomination, there are a series of formalities before the hearing, including a background investigation by the panel’s professional staff, an evaluation by the American Bar Association and courtesy calls to Capitol Hill.

The White House review process has already begun, said spokesman Josh Earnest. “I can confirm for you that the president and his team take this process very seriously and understand that while there is ample time, we are going to move expeditiously to fulfill the president’s constitutional responsibilities.”

Earnest added, “So that process has generally, has begun, but exactly where we are in the process and what the president’s reviewing at this point is not something that we’re going to be prepared to discuss publicly.”

When President Reagan nominated Robert Bork for the Supreme Court in 1987, 70 days elapsed before then-Sen. Joe Biden (D-Del.) convened a Judiciary Committee hearing on his nomination. The time frame could come back to haunt the vice president, if Republicans delay the process.

Democrats would not promise to hold their fire if Grassley takes as long with the Supreme Court nominee as he did with Lynch’s nomination.

“Look, I’m not going to prejudge what Senator Grassley, how many questions he has or how long he wants to take,” Sen. Chuck Schumer (D-N.Y.) said yesterday. “I do think there should be a thorough examination of every … potential justice.”

Schumer said Obama should select “a mainstream nominee that can get bipartisan support and get on the court,” without naming any names.

It is not the Senate’s job to propose names, Blumenthal said. “There should be demanding and rigorous scrutiny, and senators should vote against a nominee who fails to be completely candid and forthright,” the former federal prosecutor said.