WASHINGTON – 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. “I wouldn’t make any prognostication on anything about the future because there’s so many balls in the air when those things are considered,” he said.
But in the following two hours, those balls fell – on Grassley.
The conservative Twitterverse erupted with demands that the Senate refuse to confirm anybody nominated by President Barack Obama to replace Scalia.
Conservative firebrand Ted Cruz, the presidential candidate and a member of Grassley’s committee, declared that “we owe it” to Scalia “for the Senate to ensure that the next president names his replacement” – a sentiment echoed by other Republican presidential candidates.
Then, at 6:41 p.m., not two hours after the San Antonio Express-News broke the news of Scalia’s death, 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 declared. 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 climbed down so quickly that he erroneously accepted a conservative claim, which was making its way around the Internet, 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.”
Observed Noble, the reporter who had spoken to Grassley earlier: “Grassley’s forceful statement marks a rapid rhetorical shift from less than two hours before.”
The swift reversal by the Senate judiciary chairman was part of an unseemly – but not unsurprising – spectacle that greeted Scalia’s death. Democrats and Republicans alike rushed to dig in about whether a successor for Scalia should be considered in the next 11 months – without even a respectful pause. Whether one loved him or hated him, Scalia was a towering figure, and he deserved at least a moment before the bickering began.
McConnell, in his 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 – no hearings and no vote.
This is a grim commentary on the current state of 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.
There was a longer vacancy – 27 months – in the 1840s, as the nation slid toward Civil War. Are we really at a similar point today?
The proverbial before-the-body-was-cold pronouncements began nine minutes after the San Antonio paper 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.”
Four minutes later, Conn Carroll, a spokesman for Senate Judiciary Committee member Mike Lee, R-Utah, tweeted that chances were “less than zero” of an Obama nominee succeeding.
Another committee Republican, John Cornyn of Texas, tweeted a headline to justify inaction. “Schumer in 2007: Don’t confirm any Bush Supreme Court nominee,” it said.
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,” Schumer said, and in the next breath explained: “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 unless the Senate wants to return to antebellum divisions, don’t deny that nominee consideration.
Follow Dana Milbank on Twitter @Milbank.