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Republicans Can Wait, But They Still Might Not Get a Conservative Supreme Court Justice

Even if Republicans win the presidency, they'll have to hold onto the Senate to confirm a new justice -- and that may not happen.
February 15, 2016, 5:58pm
Photo by Peter Foley/EPA

President Barack Obama has said he will nominate a new candidate to the Supreme Court, following the death of conservative Justice Antonin Scalia on Saturday. The vacancy gives Obama the opportunity to change the dynamics of the court, giving liberals a 5-4 advantage.

But Republicans in the Senate, which confirms new justices, say they will run out the clock on Obama's nominee until a new president enters the Oval Office, presuming that a conservative candidate will win the White House this fall. Sen. Ted Cruz, who hopes to be that president, told ABC News this weekend that he would filibuster whomever Obama nominates, preventing the Senate from voting to confirm a new justice until after the November election. "This should be a decision for the people. Let the election decide. If the Democrats want to replace this nominee, they need to win the election," Cruz said.


The thought process for Republicans is that if they win the presidential election, the Republican-controlled Senate could help them to confirm another conservative nominee to the Supreme Court. But just as it's unclear which party will win the presidential election, there is no guarantee that Republicans will hold onto the Senate either.

Ask any political strategist, Democrat or Republican, and they'll tell you that the Senate map in 2016 favors Democrats. Of the third of senators up for reelection this year, the majority of vulnerable members who could lose their seats this year are Republicans.

Republicans currently hold a majority with 54 out of 100 seats in the Senate, a slim margin that by Senate rules requires them to get six Democratic votes to pass almost anything, including approval of a new Supreme Court nominee. That dynamic could change after the 2016 election is finished and a new president enters the White House, but it's very possible that Republicans will actually have fewer seats than they hold now, potentially even yielding a Democratic majority.

That's because five of the Republican senators up for reelection this year are running in states that Obama won not once, but twice. They are Kelly Ayotte of New Hampshire, Ron Johnson of Wisconsin, Mark Kirk of Illinois, Rob Portman of Ohio, and Pat Toomey of Pennsylvania. None of these candidates has run for reelection in a presidential year before, and during the 2008 and 2012 campaigns each of these states elected a Democratic senator.


Once you include the vacant Florida seat that Sen. Marco Rubio has given up in his quest for the presidency, that's six total seats that Obama won, but Republicans could lose in 2016.

All five of these blue and purple-state Republicans faces a credible Democratic challenger and Rubio's seat has strong competition on both sides. Still, Republicans could hold on to some -- and possibly all -- of these seats, given that incumbents generally have an edge in any Senate race and all of the candidates are well-funded and can expect the help of outside billionaires and super PACs as well.

That incumbent edge could be weakened in this environment, however. The success of Donald Trump's and Sen. Bernie Sanders' campaigns show that the public is clamoring for outsiders, at least in the presidential race. Both anti-establishment candidates just won New Hampshire, where Ayotte faces reelection in November. But her main Democratic opponent is also a politician: two-term Democratic Gov. Maggie Hassan. The other four candidates are all facing former governors and members of Congress as well and the Florida race is dominated by members of the House from both parties.

Democrats will need to pick up five of these six vulnerable seats to win the majority, no small task, but given the dynamics of these states and potentially high voter turnout for the presidential race, taking over the Senate isn't impossible. Democrats will also need to hold on to their two vulnerable seats -- one in Nevada, where Senate Majority Leader Harry Reid is retiring, and one in purple Colorado, where Sen. Michael Bennet is being targeted by national Republicans.

A Democratic majority in the Senate could block a conservative justice from joining the Supreme Court if Republicans win the presidency. But if Democrats take the White House as well, they could push through a liberal judge -- just as Obama hopes to do before the November elections. In that case (again, a small but not impossible chance) Republicans will have won nothing by waiting.

Even if Democrats only win a few of those seats, giving Republicans a smaller majority, the GOP would have difficulty confirming a new conservative Supreme Court justice, because they will need 60 votes to get a nominee through the Senate. And if now they need half a dozen Democrats to confirm a new justice, after 2016 they may need even more.

And waiting to confirm a nominee until next year, in itself, could damage vulnerable Senate Republicans as they head into these difficult races. As James Hohmann pointed out in the Washington Post, Democrats will use the delay as further evidence the Republican party writ large cannot, or will not, govern.

Add to that the possibility that Obama nominates a person from a minority group (potentially a female, Hispanic, African-American or Indian-American judge) to the bench, and the Democratic ads in the Senate and presidential races write themselves. Just remember the furor among Democrats after Attorney General Loretta Lynch, an African-American woman, had to wait 166 days to be confirmed last year. At the time, Senate Minority Whip Dick Durbin said that Lynch was being "asked to sit in the back of the bus when it comes to the Senate calendar."