POLITICS
04/12/2016 04:36 pm ET

Republicans Would Consider Blocking A Supreme Court Pick Even After Voters Have A Say

Because, if the people get a say, shouldn't Republicans be able to overrule it?

WASHINGTON -- Republican Senate leaders may have said repeatedly that they are delaying President Barack Obama's Supreme Court nominee so the people can have a say through this year's elections -- but that doesn't mean they're going to give up their right to block that nominee if they don't like what the people decide.

Senate Majority Leader Mitch McConnell (R-Ky.) declared almost immediately after Justice Antonin Scalia died that the Senate would not act on a replacement until the next president is in office.

"The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide," McConnell repeated at a recent press conference.

He stuck by that line Tuesday, but reserved the Senate's right to veto the people's choice, which can be done by a filibuster if just 41 senators out of 100 decide to oppose the eventual nominee.

"The fundamental point here we've made over and over and over again is who ought to make the appointment, and 52 senators have said they believe the next president ought to make this appointment," McConnell said at his weekly new conference. "And the next Senate would decide how to dispose of that under the advice and consent [clause of the Constitution]."

McConnell has plenty of company in thinking there is no contradiction in letting the people have a say this year, while being willing to filibuster the results next year.

"Clearly the requirement for 60 votes [to confirm a nominee for] the Supreme Court is going to remain, regardless of whether it’s Republicans or Democrats that are in control of the Senate," Sen. Mike Rounds (R-S.D.) said.

"The Senate has the constitutional prerogatives of advice and consent. It’s part of the Constitution," Sen. Thad Cochran (R-Miss.) said. "I say do not change the rules of the Senate for this nominee."

And blocking a nominee after giving the people their say is not at all inconsistent, most Republicans said.

"It’s based upon what your Constitution will say, and based upon what your previous practices have been," Rounds said. "In this case, I don’t think there’s any question but that you’ll continue to have 60 votes necessary for a lifetime appointment to the United States Supreme Court."

Some said they also didn't see a contradiction in giving the people a say on Scalia's replacement, but then being willing to take it away.

"That’s not connected," Sen. Pat Roberts (R-Kan.) said. He suggested that while the Senate may be favoring something that sounds more like direct democracy with Obama's Supreme Court pick, appeals court Judge Merrick Garland, the Senate would be belittling itself if it were willing to stand by what the people end up saying and forgo a filibuster.

"You gotta go back to Jim Madison, I think, when the Founding Fathers sat around — it used to be 67, and now it’s down to 60 [senators to defeat a filibuster]. But if you go to 51, then you’re just like the House," Roberts said. "We don’t want to be like the House."

Some Republicans professed that the question was entirely novel to them.

"I have not even thought about that. Not at all," Sen. Tim Scott (R-S.C.) said.

"You guys are way ahead of yourselves," said Sen. Jim Risch (R-Idaho), referring to HuffPost and reporters generally. "We are where we are right now. I don’t even know who’s going to be the president."

Sen. John McCain (R-Ariz.), who famously has said elections have consequences, said the consequences in this case should not be the Senate accepting the nominee, even after Republicans are insisting that voters should consider the Supreme Court as they cast ballots in the fall.

"In my view, the consequences of the people’s vote is a new president," McCain said.

Some senators didn't have to worry about getting tied in logical knots -- since they disagree with leaving the choice to the next commander in chief.

"My theory is we ought to pick the most conservative jurist we can to replace Justice Scalia to maintain the balance of the court," said Sen. Jeff Flake (R-Ariz.). "But the principle that the next president should decide is not one that I share."

At least one senator, Dan Coats (R-Ind.), agreed that it would make sense to forgo a filibuster when a nominee comes to the Senate next year if that spot has been held vacant on the theory that the people should have a say.

"In theory it would, but theories don’t always turn out to be realities in this place," Coats said.

Coats is retiring after this year.

HuffPost

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