The Senate GOP’s Supreme Court blockade showed signs of cracking almost immediately after President Barack Obama unveiled his nominee — even as Mitch McConnell and his allies reiterated their vow not to hold any confirmation hearings before the November elections.
A handful of GOP senators said they would at least meet with Merrick Garland, the chief justice of the D.C. Circuit Court of Appeals whom Obama nominated for the nation’s highest court on Wednesday. Meanwhile, some Republicans acknowledged they could move Garland’s nomination during the lame-duck session, should their party lose both the White House and control of the Senate this fall.
Arizona Sen. Jeff Flake, a Republican on the Judiciary Committee who is generally deferential on presidential nominees, said “yes” when asked whether he would move to confirm Garland in the lame-duck session if Hillary Clinton, the front-runner for the Democratic nomination, wins in November.
“For those of us who are concerned about the direction of the court and wanting at least a more centrist figure than between him and somebody that President Clinton might nominate, I think the choice is clear — in a lame duck,” Flake said Wednesday after Obama named Garland.
Flake also said he would meet with Garland, noting that “I meet with anybody and that would include him.” Utah Sen. Orrin Hatch, the most senior Senate Republican and a former chairman of the Judiciary Committee, stressed that he doesn’t want to delve into a contentious Supreme Court nomination in this “toxic environment” and said he would not meet with Garland.
Still, “I’d probably be open to resolving this in the lame duck,” Hatch added.
Those comments diverged significantly from the view of Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who controls all judicial nominations through his panel and was scheduled to have a courtesy phone call with Garland on Wednesday afternoon.
“I think the principle that we have established of letting the people have a voice and letting the next president make the decision, that we would be breaking that principle if we did anything before Jan. 20, 2017,” Grassley said in an interview with POLITICO.
McConnell himself spoke to Garland on Wednesday afternoon by telephone, according to an aide, informing Garland personally that the Senate will not consider Garland’s nomination and would “appropriately revisit the matter” when the next president makes a nomination. McConnell told the nominee that he would hold no meeting with Garland.
After moving largely in lock-step behind McConnell’s plan to block any Obama nominee, no matter who it was, Wednesday found the GOP’s messaging increasingly frayed. While Grassley stuck to his guns, a host of Senate GOP moderates, purple-state Republicans up for reelection, and at least one other conservative senator said they would sit down with Garland — an indication that Democrats said shows their aggressive pressure campaign against Republicans is working.
Sen. Kelly Ayotte (R-N.H.), an at-risk incumbent who’s been hammered by Democratic opponent Maggie Hassan over the Supreme Court blockade, said she would meet with Garland. Though that was a break from a previous stance against even meeting with a hypothetical nominee, Ayotte wouldn’t budge on opposing a confirmation vote and left the door only slightly cracked for a lame-duck confirmation.
“My position is that we should allow the American people to weigh in,” Ayotte said. “And so I think we should see what the outcome and what direction the people of this country would like to take.”
Sen. Rob Portman (R-Ohio), who like Ayotte faces a tough election and had opposed a meeting with a nominee before Garland was named, also said he’d sit down with Garland if asked. He said through a spokesman, however, that he would not move beyond that courtesy and still opposes confirmation.
GOP Sen. Susan Collins, who helped confirm Garland to the D.C. Circuit in 1997, said she would “very carefully” review the judge’s record in the 19 years since the vote. White House officials reached out to the moderate Mainer this week to see if she would meet with Garland; Collins said yes and said she will do so following the two-week Senate recess that begins next week.
Before Obama sent his nominee up on Wednesday, Collins and Illinois Sen. Mark Kirk were the two sole Republicans who disagreed with the broader Senate GOP Conference’s strategy to completely block an Obama nominee this year.
“One-on-one exchanges with judicial nominees frequently gives me a very good understanding of their temperament, their intellect, their fidelity to the Constitution and rule of law. So I look forward to sitting down with him,” Collins said. “The Senate works best when we follow the normal order.”
Despite the cracks, there were still no major signs that Republicans would heed the Democrats’ call to swiftly move on Garland’s nomination in the next several weeks. And while Garland did garner a healthy 76-23 confirmation vote in 1997, two powerful GOP figures in the current nomination battle voted against him nearly two decades ago: Grassley and Majority Leader McConnell (R-Ky.).
On the other hand, seven current Senate Republicans voted to confirm Garland back then: Hatch, Collins, and Sens. Dan Coats of Indiana, Thad Cochran of Mississippi, Jim Inhofe of Oklahoma, John McCain of Arizona and Pat Roberts of Kansas.
“There’s a different standard for a circuit court nominee than there is for a Supreme Court justice,” Grassley said. “That’s best illustrated by the fact that [Robert] Bork was unanimously confirmed for the D.C. circuit but then when he came up for the Supreme Court, he was overwhelmingly rejected.”
Democrats quickly seized on the news that a growing number of Senate Republicans were willing to meet with Garland, with New York Sen. Chuck Schumer, the No. 3 Senate Democrat, calling the development “significant.” Obama said in his Rose Garden announcement that Garland would begin meeting personally with senators on the Hill starting on Thursday.
“I was pleasantly surprised that so many of them have already said they’ll see the nominee. If it weren’t such a strong nominee they wouldn’t have been able to do that,” Schumer said. He likened the meetings to testing the waters. “And once you get wet, you’re going to get wetter.”
But others Republicans, including those who initially seemed to depart from McConnell’s strategy following the death of Antonin Scalia last month, remained committed to their leader’s plan after the announcement of Garland.
Sen. Thom Tillis (R-N.C.), who had openly speculated about appearing obstructionist by dismissing a nominee, firmly said he wouldn’t meet with a nominee under the position Republicans took last month.
Sen. Lindsey Graham (R-S.C.), who also generally defers to the president on nominations, also said he would not meet with Garland. Both Tillis and Graham are Judiciary Committee members.
“Seems to be a nice fella,” Graham remarked. “I wish him well.”
Meanwhile, Inhofe, among the most conservative members of the Senate, said he’d meet with Garland. But renowned maverick McCain would entertain zero questions about meeting with a nominee or considering Garland in the lame-duck session.
“I’ve said everything I have to say on the Supreme Court nominee in a written statement,” McCain said. Confronted with possible confirmation scenarios, he said: “What about if pigs fly? What about if pigs fly or a vegetarian is elected?”
Still, Republicans may find that a live confirmation fight this year isn’t all bad, particularly if Hillary Clinton wins the presidential election — a situation that Collins is already warning about.
“The irony would be if Secretary Clinton wins and this nominee, who is considered a centrist, is not considered and we end up with a nominee who’s far more liberal,” she noted.
Senate Majority Whip John Cornyn (R-Texas) attempted to lay down the law as he entered a party lunch on Wednesday, dismissing the cracks in his party’s strategic foundation and openly accusing Obama of going with Garland as his second choice over other nominees that Cornyn speculated had likely bowed out rather than face the GOP blockade.
“This person will not be confirmed,” Cornyn said “So there’s no reason going through some motions and pretending like it’s going to happen. Because it’s not going to happen.”
When pressed whether there is any factor that would make McConnell change his mind, Cornyn said no.
“He made a decision,” Cornyn said. “And we have to continue to explain to people the principle involved: It’s not about the personality.”
Darren Goode and Eliza Collins contributed to this report.
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