Senate Republicans have spent the day digging in their heels even deeper against allowing President Obama to appoint a replacement for Antonin Scalia. Today, every Republican member of the Senate Judiciary Committee signed a letter insisting that they will not old hearings on any potential Supreme Court nominees until after President Obama leaves office.
Senate Majority Leader Mitch McConnell, along with Senators Orrin Hatch and John Cornyn, also said that they would refuse to even meet with a hypothetical nominee in private, let alone hold confirmation hearings in public, let alone hold an actual vote on their confirmation.
McConnell and Cornyn both say they would not even meet with an Obama SCOTUS nominee.
— Todd Zwillich (@toddzwillich) February 23, 2016
Hatch says if nominee showed up at his office he would not meet w/ them. "Not on the basis of the Supreme Court nominee."
— Mike DeBonis (@mikedebonis) February 23, 2016
In other words, Republicans on the Senate Judiciary are planning to walk the halls of Congress screaming NANANANANCANTHEARYOU for eleven months, because there isn’t a rule saying they can’t. They’re at a point where, like newborn babies, they will behave as though things they don’t see have in fact ceased to exist. It’s childish, but after seven years they’ve learned that flipping a table and throwing a temper tantrum incurs fewer political costs than giving President Obama any ground.
In this case, Senate Republicans are throwing traditional norms of governance out the window because the stakes are much higher than normal. Allowing President Obama to appoint a replacement for Antonin Scalia will flip the ideological balance of the Supreme Court, giving liberals five consistent votes for the first time in over fifty years. That would throw a wrench into the GOP’s overarching political strategy, which has become increasingly reliant on using the court system as a means for bypassing legislative gridlock of their own creation to enact their agenda.
Nowhere is this more apparent than in the battlegrounds over LGBT equality. Every plausible Republican candidate has promised to, if elected, appoint Supreme Court justices who will not only overturn Roe v. Wade, but who will also overturn Obergefell v. Hodges and Windsor v. Connecticut. Those same justices would also likely have problems with new legislation like the Equality Act, which extends federal non-discrimination legislation on the basis of sexual and gender identity, while being favorable to new legislation like the First Amendment Defense Act, which is little more than a “gay-neutral” vehicle to sanction anti-LGBT discrimination.
On the flip side, the President has an opportunity to nominate a jurist who would build on the legal victories the LGBT community fought for in Obergefell and Windsor. His nominee could hold, for instance, that employment discrimination on the basis of sexual or gender identity is already illegal under Civil Rights Act, as arguments from the Equal Employment Opportunity Commission and the Department of Justice (and at least one US District Court) have suggested. Lower courts disagree on this question, which means that it will likely wind up before the Supreme Court in the not-too-distant future:
Given that the Republican-controlled Congress will continue to block the Equality Act indefinitely, the biggest opportunities to turn its proposed protections into legal realities will be through the courts.
President Obama is about to nominate someone to the Supreme Court who can solidify and improve upon the gains the LGBT community has made in the last seven years. Conservatives are well aware of how big of a deal that is, and are willing to go all-out to make sure it doesn’t happen. Here’s hoping the Democrats come to play, too.