WASHINGTON — There’s a potential nightmare for Hillary Clinton if she wins the presidency but Republicans hold onto control of the Senate — a blockade of her Supreme Court picks.
That prospect — which could impact every aspect of American life including climate regulations, abortion and gun rights — was first raised by Sen. John McCain of Arizona, then Ted Cruz of Texas and now Richard Burr of North Carolina, who CNN reported Monday talked up the idea at a private event over the weekend.
“If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court,” Burr, chairman of the Senate Intelligence Committee, told a group of Republican volunteers, according to CNN.
Senate Republican leader Mitch McConnell hasn’t publicly endorsed Burr’s strategy, which is aimed at denying a lasting, liberal majority on the court, but he hasn’t disavowed it either. There are now eight justices, four nominated by Democratic presidents and four by Republicans, after the death of Antonin Scalia in February.
Democrats could circumvent a GOP blockade if they control the Senate by changing the chamber’s rules, even though that would be a controversial move. But a Republican-held Senate could deny Clinton the 60-vote margin needed to advance high-court picks on the floor.
Control of the Senate is on a knife edge in the polls, with a half-dozen races considered tossups and the latest revelations about the FBI reviewing additional Clinton emails adding even more uncertainty in the final week.
The next president could have an unusual opportunity to shape the future of the high court for years to come. Several justices will be on retirement watch over the next four years. Ruth Bader Ginsburg is 83, Anthony Kennedy is 80 and Stephen Breyer is 78.
Should Clinton fill Scalia’s seat, the court would have a majority of Democratic appointees for the first time since 1969, at the end of the liberal era under Chief Justice Earl Warren. Conversely, a President Donald Trump could help secure a conservative majority on the court for a generation.
There’s no constitutional requirement that the Senate confirm anyone. But blocking nominees for an entire presidential term would be unprecedented. The longest Supreme Court vacancy lasted 835 days in the 1840s, according to the Congressional Research Service.
McConnell has repeatedly declared that Merrick Garland, President Barack Obama’s pick, won’t get a vote in this Congress. But he hasn’t explicitly guaranteed the next president’s nominee will.
“The leader has been clear that it will be the next president who makes the nomination for the Scalia vacancy,” said McConnell spokesman Don Stewart, who declined to comment further.
But voters aren’t just choosing a president on Tuesday; they’re also choosing the body that gets to approve, or block, nominees.
Indeed, other Republicans — even those who aren’t supporting Trump like Rep. Joe Heck, who is running in Nevada for a Senate seat, or Sen. Pat Toomey in Pennsylvania — have been using the Supreme Court to court conservative voters, although they at least say they would consider Clinton’s picks.
When he was in the minority, McConnell’s Republicans sought to block some of Obama’s judicial and executive nominees, a tactic that prompted Senate Democrats to take the controversial step of eliminating the 60-vote threshold for most nominees in 2013.
Under the existing rules, Clinton would still need 60 votes to overcome a filibuster of her Supreme Court picks, meaning at least 11 Republicans would have to vote to advance a nominee if Republicans end up with a 51-49 majority.
If Senate Democrats win the majority and Chuck Schumer of New York becomes the majority leader, he could get around any blockade by removing the 60-vote threshold — a move known as the “nuclear option.”
The idea of blocking Clinton’s court choices has been percolating for weeks.
On Oct. 17, McCain told a radio station, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” His office later backtracked, saying he would examine each nominee.
Cruz took it a step further last week, telling reporters there “is certainly long historical precedent for a Supreme Court with fewer justices,” according to The Washington Post. “That’s a debate that we are going to have.”
The same day, conservative legal scholar Ilya Shapiro of the Cato Institute said it plainly in a piece for TheFederalist.com titled, “The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees.”
He argued that the Senate, which has total authority on whether to bring up nominations, “is fully within its powers to let the Supreme Court literally die out.”
On Monday night, Sen. Rand Paul of Kentucky added his voice, making clear the kind of hurdles that any Clinton nominee would face, even if he or she is given a vote on the Senate floor.
“I can’t imagine voting for a Clinton nominee unless she would appoint somebody that actually were someone who believes in the separation of powers as the founders wrote into the Constitution,” he said in a debate with Democratic challenger Jim Gray, according to The Associated Press.
Outgoing Senate Democratic leader Harry Reid of Nevada used the potential for a blockade in a fundraising pitch for the Progressive Change Campaign Committee.
“We need to treat it like the constitutional crisis it will be if Democrats don’t take back the Senate majority,” Reid wrote. “The Supreme Court could dwindle to seven, then maybe six, justices. It would turn our justice system and our democracy on its head. The Founding Fathers would roll over in their graves.”
Democratic Sen. Amy Klobuchar of Minnesota said in an interview Tuesday that she didn’t think Republicans would actually carry out the Burr strategy of obstruction.
“I don’t think that’s shared by most Republican senators,” she said, predicting that the Scalia vacancy would be filled by the first part of next year.
But Klobuchar, and fellow Judiciary Committee member Sheldon Whitehouse of Rhode Island in a separate interview Monday, agree with what Clinton’s running mate, Tim Kaine, told the Huffington Post — that a Senate Democratic majority would likely change the rules if needed to prevent Republicans from keeping the vacancy indefinitely.
“I don’t think we’ll have a choice,” she said, if Republicans line up to filibuster Clinton’s picks. “My hope is we won’t get there.”
As for how Republicans should proceed if they win the Senate, there’s no consensus on the right — yet.
Several prominent Republicans are resisting the idea of a total blockade, including Judiciary Chairman Chuck Grassley of Iowa, conservative Mike Lee of Utah and Orrin Hatch of Utah, the chamber’s longest-serving Republican, as reported by the Salt Lake Tribune.
“Of course we will look at anyone who might be nominated by the next president,” Lee said, according to the paper. “Whether that nominee will be confirmed is an entirely different question — one that can’t be answered in the abstract.”
By Steven T. Dennis and Sahil Kapur
Bloomberg News