Senate GOP Remains United On Denying Consideration To Obama SCOTUS Nominee

The President could nominate someone to fill the vacancy created by Antonin Scalia's death as soon a next week, but Republicans in the Senate remain firmly committed to their decision to deny the as yet unnamed nominee any consideration.

Scalia Seat SCOTUS

Despite indications in the polls that they could pay a political price for their position, Senate Republicans are standing by their refusal to consider any Supreme Court nomination from President Obama:

WASHINGTON — Senators on the Judiciary Committee clashed openly on Thursday over filling a Supreme Court vacancy during an election year, with Republicans insisting that they were doing the right thing by refusing to consider any nominee put forward by President Obama and Democrats accusing them of shirking their constitutional duty.

The Judiciary Committee chairman, Senator Charles E. Grassley, Republican of Iowa, denounced Democrats for the pressure they have brought in recent days in pushing him to convene confirmation hearings once Mr. Obama picks a nominee, which could happen as soon as next week.

Mr. Grassley again invoked remarks by Vice President Joseph R. Biden Jr.from when Mr. Biden was the committee chairman in 1992, in which he urged that no Supreme Court vacancy be filled in a presidential election year. Mr. Biden said he was speaking hypothetically, apparently out of concern of a voluntary retirement before the end of President George Bush’s term.

Mr. Grassley accused Democrats, including Mr. Biden, of revisionism. “Some have tried to recast what Joe Biden said to give it an entirely different meaning,” he said, noting that no Democrat had disputed the remarks at the time.

Mr. Grassley also chastised his Democratic colleagues for singling him out for attack on the Senate floor, and he defended his written pledge not to hold hearings on any replacement for Justice Antonin Scalia, who died last month, until after the November elections.

Mr. Grassley said it was clear no action would be taken on a nominee. “So, why this charade?” he asked. “Why all this outrage about a hearing?” He closed by saying he was confident in the Republicans’ position. “It’s the right thing to do,” he said.

The senior Democrat on the committee, Senator Patrick J. Leahy of Vermont, said he had so many disagreements with Mr. Grassley that he could not possibly discuss them all. But he disputed the relevance of Mr. Biden’s comments.

“The fact is we have taken action every time there has been a Supreme Court vacancy,” he told Mr. Grassley sharply. “We have always done the hearings and had the votes when there’s a Supreme Court vacancy.”

Based on the polling on this issue, one would think that Republicans are making a big political mistake here by refusing to even consider a nomination, even if it just amounts to the minimal step of holding hearings as they have done in the ordinary course of business in the past. While initial polling seemed to indicate that Americans were equally divided on whether or not they supported the position Senate Republicans were taking,  subsequent polls have shown majority support for the Senate should act on whatever nominee he sends it just a it would in any other case. This includes polls by Fox NewsReuters/IPSOS, and the Pew Research Center, as well as polling by Public Policy Polling of voters in Ohio and Pennsylvania, all of which clearly showed that a majority of the public believed that the Senate should act on the President’s nominee, whomever may end up being. More recently, this was backed up by polling from CNN/ORC as well as polling from Public Policy Polling that shows signs of voter anger over the GOP’s position in states such as Arizona, Iowa, Missouri, and North Carolina that could impact the Senate races in those states in the fall. Senate Republicans, however, are citing other polling in favor of their position:

Senate GOP leaders are making the case to their members this week that their decision to ignore President Barack Obama’s Supreme Court nominee is not just a principled stance, but a politically beneficial one, too.

Majority Whip John Cornyn (R-Texas), according to GOP sources, is quietly circulating a four-page memo throughout the Senate Republican Conference on the public’s views on filling the high court’s vacancy.

The memo, obtained by POLITICO, makes the case that a majority of voters would prefer to keep deceased Justice Antonin Scalia’s seat empty — for a year or even longer — rather than allow Obama to nominate a liberal justice that would move the court to the left.

“The survey found almost unanimous awareness of the death of Justice Scalia, strong support for originalist intent in interpreting the Constitution, and concern over President Obama appointing a liberal justice who would tip the ideological balance of the court,” Republican pollster Greg Strimple wrote in the memo.

Strimple found that 54 percent of those surveyed were more concerned about a liberal justice being chosen to replace Scalia, compare to the nearly 41 percent of respondents who were more worried about the seat being open for a year or more.

Not surprisingly, Republicans were much more concerned about the potential shift in ideological balance. But Strimple’s findings showed that 53 percent of independents said a liberal justice was the bigger concern, compared to 41 percent who said a prolonged vacancy was the larger issue.

A majority of those surveyed — 54 percent — said they believed Obama would nominate a liberal justice and that his pick would tip the balance of the Supreme Court. And nearly 56 percent said justices should follow the original intent of the Constitution, in the mold of Scalia.

“Our findings show that a majority of U.S. voters share the concerns of the GOP in regard to tipping the ideological balance of the Court and the need for the next Justice to strictly interpret the Constitution,” the memo reads.

The poll surveyed 600 likely voters between Feb. 27 and Feb. 29.

It’s unclear where the polling that Cornyn’s memorandum relies upon actually comes from, and it’s hard to judge the reliability of the poll itself without seeing a copy of the data, but it’s worth noting that this poll appears to ask very different questions from those that the polling I cited above used. In those questions, the pollster simply asked whether or not the respondent believed that the Senate should give due consideration, such as a hearing and a vote, to whatever nominee the President puts forward. The poll that Cornyn relies upon, on the other hand, sounds as though it is attempting to influence the respondent by discussing the kind of nominee that President Obama would send to the Court. In reality, of course, that question is rather immaterial to the issue at hand since nobody seems to be arguing that the Senate is obligated to accept any nominee the President sends at face value. Indeed, just as the Constitution does not require the Senate to act at all on a Supreme Court nominee, it does not require the Senate to approve that nominee even if they are the most qualified potential Supreme Court Justice on the planet. Additionally, the question of who the President chooses to replace Justice Scalia is quite different from the question of whether the Senate should hold hearings at all.

Despite these objections, polling like this, as well as evidence in the polling that I’ve cited that shows that the vast majority of Republicans support the Senate GOP’s position on “No Hearings, No Votes,” is likely to keep Republicans standing firm on their position for now. As things stand, they have a lot more to lose from backing down than they have to gain by holding hearing or voting, even if they ultimately end up rejecting President Obama’s nominee in a Cloture Vote, which is the most likely outcome of any proceeding in this case anyway. For better or worse, the politics of this situation are such that Republicans have more to fear from retribution by the hard core base of their party for backing down than they do from regular voters in the fall elections, or at least that’s their perception of the matter. As long as that’s the case, you can expect no movement on any nomination.

As for when that nomination might be expected, the official 30 day mourning period set by the Supreme Court ends this weekend, so many observer are expecting we might get a nomination from the President as early a next week. Then, we’ll see where this is all headed.

FILED UNDER: 2016 Election, Congress, Law and the Courts, Public Opinion Polls, Supreme Court, US Politics, , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. HarvardLaw92 says:

    Good. It will give Obama the chance to regularly point out the empty seat from the bully pulpit. Hell, it may even become a rallying cry for Democratic voters in November.

  2. gVOR08 says:

    The poll that Cornyn relies upon, on the other hand, sounds as though it is attempting to influence the respondent by discussing the kind of nominee that President Obama would send to the Court.

    A Republican did a push poll? Oh my dear, I’ve never heard of such a thing.

    My favorite was decades ago. ‘Who should run a company, the rightful owner or communist union leaders?’

  3. Michael says:

    The Republican Senators can not back down from their “principled stance” now. One look at their nominees, in particular their front runner, shows what happens when you promise something and don’t deliver. They have learned their lesson, but it may be too late.

  4. HarvardLaw92 says:


    The problem then becomes that essentially every sitting Republican senator will have to jet back to DC every three days to survive Democratic quorum calls in order to prevent Obama from opening up a recess window. It’ll absolutely wreck Republican Senate campaigns.

  5. al-Ameda says:


    The problem then becomes that essentially every sitting Republican senator will have to jet back to DC every three days to survive Democratic quorum calls in order to prevent Obama from opening up a recess window. It’ll absolutely wreck Republican Senate campaigns.

    Exactly. That’s a kabuki that I certainly look forward to.

  6. Gustopher says:

    Closer and closer to Clinton appointing an actual liberal, with 50+ Democratic senators.

  7. george says:

    I still don’t understand why the Republicans simply don’t agree to consider any candidate Obama puts forth, and then vote against them (while dragging their feet in the process). It would give them the same result without all the trouble.

    What’s their gain in completely refusing to consider a nominee rather than just voting against them?

    Not that I’m really complaining, I think this will back fire badly for them.

  8. bloated sack of protoplasm says:

    @george:..What’s their gain in completely refusing to consider a nominee…

    They don’t want to cave in to the Black man in the White House.
    It would piss off their constituents of “european heritage.”

  9. Davebo says:


    You’d need 60 and that’s not likely.

  10. Davebo says:


    You’d need 60 and that’s not likely.

  11. tien says:

    there will be a rule change to 51 votes in the next senate, mark my word

  12. PJ says:


    there will be a rule change to 51 votes in the next senate, mark my word

    50 + tiebreaking VP

  13. Tillman says:

    @george: Contracting out the response to Josh Marshall:

    The necessity of the “three nos” [no meetings, no hearings, no vote] is tied to a very evident slippery slope Republicans are desperately trying to avoid. If you meet with a nominee and then get asked how it went, what do you say? “It was a good meeting, a very qualified individual. But we definitely won’t hold a confirmation hearing?” That doesn’t make sense. The whole thing doesn’t make a lot of sense. But that’s okay if you put the whole story to bed in February or March. There’s a big difference between just announcing it and getting past it and having a death of a thousand messaging cuts over the course of an election year. As the people managing the opposition on the Republican side have made clear, they need to do everything they can to avoid any discussion which focuses on the qualifications of the nominee – an amazingly cynical statement but accurate in terms of strategy.

    In the Republican view, they lose even if Obama nominates another Kennedyesque centrist. The balance of the court goes from being a certain 5 votes for most of their issues to a far less certain outcome. This is already evident. Companies expecting a particular outcome or right-leaning groups pursuing cases in court are reticent to push cases to the Supremes now as it’s a much greater risk than it’s been in a decade. If you’re the Republican Senate, and you’re going to lose no matter which way you go, why not gamble the whole thing, wreck any sense of precedent or prudence, and hope voters give you the presidency anyway?

  14. stonetools says:

    At this point the die is cast and I don’t expect the Republicans to back down. Obama will nominate a very well qualified candidate, which the Democratic senators will meet with, and then Obama and the Democrats will campaign like hell to make the Republicans pay. Since the public is strongly in favor of Obama on this, they should be able to make hay in the November elections. My understanding is that the prediction markets now favor a Democratic takeover of the Senate , and if that happens, Obama may get his nomination in the end(The new Senate will begin its term a couple of weeks before January 20).
    Meanwhile Harry Reid with Joe Biden’s help is surely going to dedicate his last summer in Senate to make the Republicans’ effort to stop a recess appointment a living hell for Republican Senators running for re-election.
    Obama,also, will have great fun mocking the Republicans for working hard to give Trump the chance to pick a Supreme Court Justice. Boy howdy, the Republicans will look even more like idiots than they do now before this is done.

  15. Pch101 says:

    I still say that it’s smart politics for the GOP. This will help to rile up their base, while Democratic voters will probably be less concerned. It may not ultimately impact the electoral vote count, but the Republicans will need all of the electoral vote help that they can get (I suspect that it will be difficult to do much to alter the 2012 map), and it might aid them with some House races. There’s potential upside at no cost.

    But this is not what the Federalists would have wanted, and anyone who would claim to be an originalist who supports this nonsense is either ignorant or a hypocrite.

  16. HarvardLaw92 says:


    It fires up their base, sure, but it also costs them moderate votes they can’t afford to lose. Pandering to people who were never going to vote anything but Republican at the expense of alienating people who might go either way is a recipe for a Democratic Senate.

  17. Pch101 says:


    Social conservatives know what the court can do for them and care more than anyone else. Moderates will not vote based upon this.

  18. HarvardLaw92 says:


    You’d be surprised. Most of the ones that I know understand that a Republican win in November means 4 more Alitos on the court and a conservative lock for the next 20 to 30 years.They’re quite upset by the thought.

    It won’t hurt that PACs will undoubtedly remind people on a regular basis of that potentiality .

  19. Gromitt Gunn says:

    I still think Obama should nominate Trump and then watch the GOP short circuit as it tries to figure out how to respond.

  20. gVOR08 says:

    @HarvardLaw92: A collective action problem. As individuals they’re OK with losing the Senate as long as one of the lost seats isn’t theirs. For most of them, the priority is not getting primaried.

  21. Joe says:

    As a corollary to Groucho Marx’s observation about club membership, I am not sure we would want any Justice who was willing to put his/her name in nomination for this.

  22. James Pearce says:

    Despite indications in the polls that they could pay a political price for their position

    Must have been Slate, I think, but the other day I read a semi-convincing piece that suggested the biggest price to be paid for this “no nominee” position will be paid by the conservative movement’s lawyers, who will now have to figure out how to petition an 8 member court with no Scalia.

    It’s going to be really bizarre in a few months when Donald Trump is the Republican nominee. Republicans in Congress are going to be left arguing that a guy they didn’t really want and couldn’t really stop should be the one to make a pick. The sale may yet happen, but conditions are such that buyers remorse is a distinct possibility.

  23. Pch101 says:


    Voters claimed to be unhappy with the GOP over the 2013 shutdown. Blame was laid firmly on the Republicans.

    Yet in 2014, the GOP added 13 seats in the House and 9 in the Senate. So much for public outcry.

    Let’s be serious; this issue is even less inspiring to most voters than the shutdown. Most Americans are not single-issue voters, and not many of the few who are will switch to the Dems or away from the GOP because of this.

    The Republicans know this, of course, which is one reason why they’re doing this. The downside for the GOP would come from upsetting the social conservatives who want to fight, fight, fight.

  24. Pch101 says:

    Incidentally, the Daily Signal (which is a Heritage Foundation blog) is touting the results of a push poll that claims that a majority of voters wants to delay the appointment. (Naturally, the Heritage Foundation did not point out to its readers that it was a push poll.)

    It should be evident that they are priming the conservative base to turn this into an election issue. This dispute over Scalia’s replacement is a strategic move on the part of the party, not just a stunt.

  25. al-Ameda says:


    Not that I’m really complaining, I think this will back fire badly for them.

    Unfortunately for that notion, Republicans have paid exactly no political price for obstructing everything Obama for 6 years now.

    Republicans paid zero price for attempting to leverage their demand that ACA be de-funded or face a government shut-down. They shut it down. They also attempted to leverage those same demands with respect to the federal debt limit – they threatened to let the federal government default on its debt securities unless GOP demands were met. They figured that Obama would be blamed for not capitulating to GOP ramsom demands. Polls consistently showed they were wrong, but voters, did not really care at all and widened Republican majorities in Congress.

  26. Pch101 says:


    Republicans paid zero price for attempting to leverage their demand that ACA be de-funded or face a government shut-down.

    Not only did it not hurt them, but it helped them with their base.

  27. george says:


    Thanks. I suppose the slippery slope thing has a kind of logic to it, but I still suspect it’d be easier for them to just go through the motion, dragging out the process, and voting no. There’s always objections to any human (everyone has some problem or another), but to refuse to even consider makes them appear to be playing politics with the SCOTUS (which they are, but its surprising they don’t disguise it).

  28. Pch101 says:


    to refuse to even consider makes them appear to be playing politics with the SCOTUS (which they are, but its surprising they don’t disguise it).

    If you want to understand the hard right, then you have to understand that they like to be angry and detest subtlety. It isn’t enough to agree with their views; to win them over, one must also be just as loud and zealous as are they.

    “Straight talk” is defined by the hard right by the willingness to use racial slurs, offer crude stereotypes, and make bombastic statements. Even polite forms of bigotry don’t go far enough for them. They want to see others who are as angry as they are.

  29. Jc says:

    Saw one post where it would be funny if Clinton won and appointed Barack Obama. lol

  30. gVOR08 says:


    This dispute over Scalia’s replacement is a strategic move on the part of the party

    On their side “strategic” means they can fund raise off it.

  31. Tony W says:

    @Pch101: No kidding on the anger – they even have their own facts. From Facebook this morning:

    Remind me of 1930s Germany. Two groups of thugs, communist Thugs and National Socialist thugs out on the street beating people up. Not allowing opposing views to be heard. The only one with right to free speech is themselves. Now I understand why it is the president’s hometown.

    I know a guy that lives in Chicago. He’s now in his seventies and been retired for quite a while. He’s an admirer of Fidel Castro. He goes to every Marxist March he can find. This is what he does for thrills this is how he finds his self-worth. His big accomplishment in life was to be giving a bullhorn. He now goes to these marches and yells at people on the street. He believes in free speech for his point of view only. Of course he has yet to explain why Communists need to put fences up to keep people in. Or why Cubans risk their life to leave that country.