GOP Senators No Longer Want The People To Decide On Supreme Court Justices

That Merrick Garland talking point is now obsolete.
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Sen. Richard Burr (R-N.C.) made a noteworthy declaration about his post-election political intents on Monday, though it was lost amid his joke, for which he has since apologized, about shooting Hillary Clinton.

Should he head back to the Senate, Burr pledged, he would try to block any Supreme Court nomination from a President Clinton.

“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,” he said.

This is how constitutional crises are made. And it’s also why Sen. Tim Kaine (D-Va.), Clinton’s running mate, told The Huffington Post that Senate Democrats would try to nuke the filibuster option on Supreme Court nominees should they regain power in that chamber.

Beyond that, though, Burr’s words Monday are directly at odds with the preferred Republican talking point about the Supreme Court that arose when President Barack Obama nominated Merrick Garland in March to take the seat of the deceased Antonin Scalia ― a talking point that Burr adopted.

Back then, the North Carolina Republican didn’t wait long to explain that he wouldn’t be considering Garland’s nomination because it was coming too close to a presidential election.

“The American people deserve a voice in the nomination of the next Supreme Court Justice,” Burr explained. “This appointment could easily tip the balance of the court in a direction not supported by the American people as evidenced by 2014’s election results giving Republicans both the Senate and House.”

Note the specific wording of the statement, which is still on Burr’s website. He wasn’t arguing that voters deserved “a voice” in choosing the next president, who would nominate a Supreme Court justice, and the next Senate, which would advise and consent on that nominee. He spoke strictly about allowing voter input in the nomination. More than seven months later, Burr is now throwing that argument out the window, pledging to block a nomination if the “American people” choose a president he opposes.

Burr isn’t the only senator who has abandoned the March dictum of letting the voters decide. Sen. John McCain (R-Ariz.) also recently pledged to block any Supreme Court nominee proposed by Clinton. And his press release from when Garland was nominated was even more explicit in saying that the next president, specifically, should get a say.

“This issue is not about any single nominee ― it’s about the integrity of the Court. With less than a year left in a lame-duck presidency and the long-term ideological balance of the Supreme Court at stake, I believe the American people must have a voice in the direction of the Supreme Court by electing a new president.” (Emphasis is ours.)

There is also Sen. Ted Cruz (R-Texas), who is now making the case that there is ample precedent for the Supreme Court to operate with only eight members. When the Garland nomination was announced, he too said the Senate should sit on its hands and let the election happen first.

“I proudly stand with my Republican colleagues in our shared belief ― our advice and consent ― that we should not vote on any nominee until the next president is sworn into office,” the Cruz statement read. “The People will decide. I commend Mitch McConnell and Chuck Grassley for holding the line and ensuring that We the People get to exercise our authority to decide the direction of the Supreme Court and the Bill of Rights.”

Cruz’s statement from March allows more wiggle room for him to now argue that he was talking about waiting for both the composition of a new Congress as well as the next president before considering a Supreme Court nominee. McCain’s and Burr’s weren’t nearly as broadly worded.

And for Burr in particular, advocating for an open seat on the court is a patently obvious flip in position. Back in 2005, he specifically argued that an eight-person Supreme Court would render the institution toothless.

“If we are not able to produce a Justice out of this fine Hall, then they will meet with eight Justices. I have to believe there is an odd number of Justices for a very logical reason. It was so there would not be a tie. On a 4-to-4 tie, what happens? Seldom have we asked the question,” he said in a speech arguing for the appointment of a circuit court justice. “On a 4-to-4 tie in the Supreme Court, the lower court’s decision stands. That means all of a sudden the Supreme Court, our highest court, the Court we look to to be the best and brightest to interpret law and the Constitution, is insignificant in the process.”

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