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The strongest Republican arguments for blocking President Obama's Supreme Court pick

The Supreme Court justices at President Barack Obama's State of the Union.
The Supreme Court justices at President Barack Obama's State of the Union.
Pool/Getty Images

It was only a few hours after news surfaced of Supreme Court Justice Antonin Scalia's death that Republicans in the Senate had vowed to reject any replacement nominated by President Barack Obama.

"The American people‎ should have a voice in the selection of their next Supreme Court Justice," said Senate Majority Leader Mitch McConnell in a statement. "Therefore, this vacancy should not be filled until we have a new President."

McConnell's hard-line position on the Supreme Court vacancy was quickly endorsed by a wide array of Republican officials, including essentially all of the GOP presidential candidates and even senators who face tough reelection prospects in purple states.

The Senate has the duty to "advise and consent" the president on Supreme Court nominations. Sen. Ted Cruz articulated the Republicans' position by saying it will be "advising" Obama not to nominate anyone.

McConnell Alex Wong/Getty Images

Senate Majority Leader Mitch McConnell. (Tom Williams/Getty)

Democrats have called this blanket refusal a reckless abandonment of the Senate's constitutional responsibility. Sen. Elizabeth Warren went as far as saying the position risked threatening "our democracy itself."

But while some liberals have cast the GOP's stance as pure political intransigence, conservatives have articulated a wide range of explanations for not considering any Supreme Court nominee chosen by Obama.

Here are four of the key reasons conservatives say the Republican Senate should block any Obama nominee.

1) A Democratic Senate would do the same to a Republican president

Conservatives have argued that a Democratic Senate would not agree to confirm a Republican president's Supreme Court nominee in an election year, and thus they consider the left's attacks hypocritical.

"Does any sentient human being believe that if the Democrats had the Senate majority in the final year of a conservative president’s second term — and Justice [Ruth Bader] Ginsburg’s seat came open — they would approve any nominee from that president?" writes David French in National Review. "Democrats would undoubtedly stand firm against a conservative president."

There are two examples in particular that many conservatives have pointed to for what they see as evidence of how Democrats would act if given the opportunity to block a Republican president's nominee.

One is the Democratic Senate's successful effort in 1987 to derail President Ronald Reagan's appointment of Judge Robert Bork, a conservative jurist with controversial pro-life positions.

"The lasting legacy of the Bork nomination was the unprecedented viciousness of the campaign to block him, which has been the standard for Supreme Court nominations ever since," writes Breitbart's Rebecca Mansour.

Another example cited by conservatives comes from 2007, when prominent Democratic Sen. Chuck Schumer said the Senate should reject any further nominees from President George Bush "except in extraordinary circumstances."

"Much like Republicans today, Schumer’s sentiment was clearly based on a fear that another Bush appointment would radically shift the overall makeup of the Court’s ideology," the Daily Caller's Blake Neff writes.

There are clear similarities between both of these episodes — in which Democrats wanted to use their leverage to prevent a Republican's Supreme Court nominee — and the current moment.

But there are obvious differences, too: The Bork nomination was torpedoed because Democrats found him to be an objectionable, extremist choice — not because they opposed any nominee from Reagan on principle. And Schumer's remarks reflect the position of one Democrat on a hypothetical scenario, not the party position on an actual vacancy.

2) Obama's nominee could give liberals big victories on critical policy issues

Another key reason conservatives want the Senate to quash any Obama nominee has less to do with procedure and more to do with the policy implications for the country.

As Vox's Libby Nelson has written, the Supreme Court will take up critical cases on abortion, birth control, voting rights, and a host of other issues in this term alone. Allowing the Democrats to have their choice nominee would almost guarantee the left clean victories on what many regard as among the most important fights in American politics.

Olivier Douliery/Getty Images

Pro-life activists at a rally in Washington, DC, in July 2015. (Olivier Douliery/Getty Images)

One can disagree with conservatives' positions on these issues. But there's no disputing that when it comes to the balance of the Court, the stakes are incredibly high.

Here's Sen. Ted Cruz's framing on ABC this Sunday of the implications of accepting an Obama choice to the Court:

I don’t think the American people want a court that will strip our religious liberties. I don’t think the American people want a court that will mandate unlimited abortion-on-demand, partial birth abortion with taxpayer funding and no parental notification. And I don’t think the American people want a court that will write the Second Amendment out of the constitution.

Another way of thinking about this: If you really believe an Obama Supreme Court appointee would guarantee the evisceration of core American liberties, why wouldn't you deploy every constitutional mechanism available to stop him?

3) Conservatives think Democrats and President Obama have themselves violated constitutional norms

Many commentators have said that it appears unprecedented for a modern Senate to refuse the president's nominee even before the choice has been made. But from the conservatives' perspective, Obama and the Democratic leadership have already strained constitutional norms — so shouldn't the Republicans?

"Whatever precedent says, if Republicans truly believe Obama has displayed a contempt for the Constitution, they have a moral obligation to reject his choice," writes the Federalist's David Harsanyi. "Because we’re not talking about good-faith disagreements over what the Constitution says anymore, we’re talking about a party that believes enumerated powers stand in their way."

This argument is at least partially a reflection of political polarization, which has made liberals and conservatives more likely to demonize each other and less likely to believe the opposition has acted in good faith.

But it's also partly the result of specific choices made by the Democratic leadership. In 2013, the US Senate, led by Sen. Harry Reid, used the "nuclear" option to weaken the filibuster, showing a willingness to change the rules and norms of Congress to accomplish a preferred goal.

(Win McNamee / Getty)

Conservatives say Sen. Harry Reid has chosen to prioritize liberal policy goals over Senate norms. Why shouldn't Republicans do the same over President Obama's Supreme Court choice? (Win McNamee/Getty)

"Democrats pioneered the art, first, of blocking judicial appointees, and, second, of ramming judicial appointees down the minority’s throat at the expense of the filibuster," writes Mario Loyola in a National Review post titled, "Obama has poisoned the well for Scalia's replacement this year."

This is also why some conservative writers have pointed to votes that, on the surface, appear to have nothing to do with the Supreme Court nomination. In Commentary, Jonathan Tobin notes that Senate Democrats don't always act "so punctilious about allowing votes about other important matters."

"In September 2015, 42 Senate Democrats voted to filibuster the approval process for the Iran nuclear deal. Even though all of them had voted for the bill that created that upside down treaty ratification process ... they denied the Senate that privilege," Tobin writes. "They cared nothing for the Constitutional niceties then."

4) The point of divided government is for the branches to fight for power

In her Facebook post criticizing the Republicans' position, Warren argued that President Obama was democratically elected and thus should have the ability to nominate a Supreme Court justice.


President Barack Obama has said he will nominate a justice for the Supreme Court vacancy. (SAUL LOEB/AFP/Getty Images)

But many conservative writers have pointed out that the Senate is also made up of democratically elected officials and that the divided branches of government were intended to fight among themselves.

"[The Senate's] right to delay or reject nominees is an important weapon in the constant struggle for advantage between the executive and the legislative branches," writes John Yoo, a Berkeley law professor and President George W. Bush's controversial deputy assistant attorney general, in National Review.

The Constitution gives the Senate the authority to offer its "advice and consent" on Supreme Court justice nominees. According to the conservatives opposed to Obama, it's up to the Senate to determine exactly what that means.

"The Senate can structure its own rules to govern the advice-and-consent process," says Adam J. White in the Weekly Standard. "Nowhere does the Constitution say that the Senate is required to act on the president's nominations."

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