The passing of Justice Antonin Scalia this past weekend throws a new wrinkle into Senate politics. As if things were difficult enough for Majority Leader McConnell, he now has to navigate one of the Senate’s most important votes, or lack thereof, as he attempts to defend seven vulnerable Republican seats.
President Obama is expected to send his nominee to the Senate as soon as next week, when it returns from recess. It is uncertain how the Senate’s “advice and consent” will unfold in coming months. Here are a few possible scenarios.
Senate does not consider the nominee
This is the least likely option. Despite Leader McConnell’s remarks following the news of Justice Scalia’s passing, and reports that the Senate Judiciary Chairman, Sen. Chuck Grassley (R-IA), would not hold hearings on a nominee, outright refusal to consider the nominee simply will not happen. Senator Grassley himself is up for reelection in a state Obama won in 2012 by almost six points. The Senior Senator is viewed as a fairly safe bet to win reelection. He will not want to jeopardize his lead with overt political maneuvers that do not play well in a state with a significant Democratic presence.
Republicans have been fighting an obstructionist label since they retook the majority. Refusing to consider Obama’s choice would not only validate that label, it would be a transparently snide political move that would garner the wrong kind of media attention.
Republicans are protecting seats in seven states won by Obama. None of those senators will likely support a stall-all-costs approach to a respected figure. There will almost certainly be a vote.
Dragged out process with no ultimate confirmation
The remaining scenarios are largely dependent on the presidential nominating process.
If the Republican nominee is a candidate senators believe can help their own reelection, then it’s likely the Senate votes, in some form, on Obama’s nominee. It may even be the case that 4 or 5 vulnerable Republicans from states like Wisconsin, Illinois, Pennsylvania, New Hampshire, and possibly Ohio support seating a centrist jurist on The Court. However, the likelihood of a filibuster is astronomically high.
Democrats would need 14 Republican votes to break a filibuster. Short of a damaging presidential candidate winning the nomination, its unlikely 14 Republicans vote with Democrats. There simply aren’t enough moderate or swing states to break the filibuster. For example, many experts peg Senator Rand Paul (R-KY) as the 8th or 9th most vulnerable Republican up for reelection. Kentucky is not a swing state. Betting on Paul to break a filibuster is a long shot. Convincing an additional five or six votes from senators in states like Oklahoma, Utah, Idaho, South Dakota, or Alabama to unblock an Obama nominee of this importance is even less likely.
This tactic satisfies critics calling for the Senate to perform their advice and consent function while also playing to the Republican base and blocking the President’s nominee. A very plausible scenario results in a historically long SCOTUS vacancy.
Senate confirms a nominee
If the nominating process plays out differently with no establishment candidate rising to win the Republican nomination, things could go very differently.
If Senator Ted Cruz or Donald Trump wins the nomination it could change the appointment dynamics in the Senate. Both of these candidates perform very well in Republican primary contests but could be liabilities in swing states Republicans are trying to defend. If Republican senators in swing states view the nomination as a drag on their own reelection, it may shift the politics enough to break a filibuster and force a nomination.
That said it would have to be a major drag on the ticket. If by July, the nominee seriously threatens the Senate majority, it’s possible swing state Republicans convince their colleagues to allow a straight up or down vote on the nominee which could then seat the next justice.
It is not likely this happens. The nominee would have to be terribly damaging for the party with some possible missteps heading into the convention. That said it’s not implausible.
The key elements here are the five seats Republicans need to maintain their majority. If those look like they are under threat, it’s possible the expected confirmation politics change dramatically in mid-2016.