Republicans at war

Republicans at war over Supreme Court

Senate Republicans are girding for a brutal conflict over how to handle the lingering Supreme Court vacancy.

By Burgess Everett

Senate Republicans are choosing sides ahead of a brutal conflict over how to handle the lingering Supreme Court vacancy, with Jeff Flake firing back Thursday at a suggestion by Ted Cruz that the party could indefinitely block any nominee from Hillary Clinton.

The internal GOP battle over what to do about Merrick Garland — President Barack Obama’s choice for the court — and any future Clinton nominee will dominate the lame duck session of Congress after the election. Senate Majority Leader Mitch McConnell (R-Ky.) is holding the seat vacant for the next president — but Cruz has suggested that Republicans could continue to block Democrats from appointing a new nominee for much longer.

That's a strategy that doesn’t sit well with Flake, a fiscal conservative from Arizona who’s shown deal-making tendencies since joining the Senate in 2013.

“You won’t be surprised, I do not agree. There’s a difference between what might be constitutional and what you could do politically and what you should do. And I think leaving a vacancy for up to four years is not why we’re here,” said Flake, who now believes Clinton is sure to defeat Donald Trump in 12 days. “It may be what becomes a litmus test if you’re a true conservative ... Just to go on record, I won’t be part of that.”

Asked what level of support Cruz’s approach has in the 54-member Republican conference, Flake replied: “I think there are enough people here who do not see it as the Senate’s proper role to hold somebody indefinitely.”

Cruz has a long history of leading the charge for conservative causes, including a failed effort to gut Obamacare that instead produced a government shutdown in 2013. The Texas Republican made a move to reprise the same strategy to defund Planned Parenthood in 2015, and he tried to prevent the international takeover of an Internet domain registry last month, although both efforts came up short.

On Wednesday, speaking to reporters in Colorado, Cruz offered perhaps his boldest gambit yet by suggesting it’s in line with historical precedent for Republicans to keep the Supreme Court vacancy unfilled under a new president, despite the GOP’s vow that it would block a nominee only until after Obama leaves office.

“There is long historical precedent for a Supreme Court with fewer justices. Just recently Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job,” Cruz said while campaigning for underdog Senate candidate Darryl Glenn, according to a transcript provided by his office. "For those of us who care passionately about the Constitution and Bill of Rights, who care about free speech and religious liberty and the Second Amendment, the best way to protect those rights is to win on Election Day so that we see strong conservatives nominated to the court, and maintain a Republican majority in the Senate to confirm those strong conservatives.”

A spokesman for McConnell pointed to comments made a month ago, when the GOP leader declined to speculate on how a Supreme Court nomination might be handled if Clinton wins. Sen. John Cornyn, Cruz's Texas colleague and the No. 2 in Republican leadership, continues to believe that Garland will not be confirmed in the lame duck, a spokesman said, while noting that he has not endorsed an indefinite blockade next year, either.

Several Republicans up for reelection have said that they would consider a nominee under a Democratic president next year, though Sen. John McCain (R-Ariz.), often a centrist when it comes to nominations, said that the GOP will be “united” against Clinton before later softening that stance.

Flake said that he’s recently mentioned to McConnell the brewing idea among conservatives to immediately go to war with Clinton and Senate Democrats over the vacancy. Flake would not characterize what McConnell thought of that idea, but said he did not “detect any” interest in McConnell for a permanent blockade.

Democrats are quickly making hay of the divide among Republicans about how to proceed. In a statement, Sen. Patrick Leahy (D-Vt.), who is in line to lead the Senate Judiciary Committee if Democrats take the Senate, said that “Republicans are proving that they have no intention of doing their jobs and that their blockade of judicial nominees is purely driven by politics."

“This amounts to piecemeal evisceration of the Constitution. I hope that reasonable Republicans will repudiate these calls for wholesale and enduring obstruction," Leahy said.

Moderate Sens. Susan Collins of Maine and Mark Kirk of Illinois are the only two senators who have pushed for the Senate to move on Garland and begin hearings. But Flake said in a couple weeks he will join them, predicting Clinton will win and the only way for Republicans to avoid being jammed with a more liberal nominee is to begin processing Garland.

“I would not block cloture on Merrick Garland. In fact if Hillary Clinton wins the election, I will be actively trying to round up votes to have hearings for him in a lame duck session,” Flake said after presiding over a short Senate session. “I’m not pretending he's a conservative or somebody we’d put up if we were in the White House, but I do think he’s more conservative than somebody that Hillary Clinton might nominate, particularly if she has a Democratic Senate.”

Spokespeople for most members of the Judiciary Committee did not respond to emails seeking comment on whether they agreed with Flake or Cruz. But after a Senate debate in Utah earlier this month, GOP Sen. Mike Lee pushed back against the idea that Clinton could appoint someone more liberal than Garland.

“I don’t believe there would be a real substantive distinction, a real noticeable difference between the voting pattern of a justice who would be appointed by a President Hillary Clinton ... and Merrick Garland,” he said, according to The Washington Post.

And regardless of Flake’s planned campaign to change Republican minds, Senate Judiciary Chairman Chuck Grassley is not backing off his wintertime vow to block hearings until there’s a new president.

"Senator Grassley’s position hasn’t changed and he stands by the Feb. 23 letter” that vowed to oppose hearings for Garland, said Beth Levine, a spokeswoman for Grassley.

Likewise the position of Sen. David Perdue (R-Ga.), a big Trump supporter who serves on the Judiciary Committee, "hasn’t changed, even in lame duck," a spokeswoman said. Similarly, a spokesman for Sen. Thom TIllis (R-N.C.) said that the senator "looks forward to thoroughly vetting the next President’s SCOTUS nominee."

Every member of the Judiciary Committee, including Flake and Cruz, signed that missive to McConnell in February.