Democrats scoff as Republicans say they'll hold out to prevent Obama Supreme Court appointee

Hours after the White House found itself with an unexpected Supreme Court vacancy to fill, Democrats could scarcely believe the political gift they thought Senate Republicans had handed them: an immediate vow not to confirm any new justice put forth by President Obama.

Veterans of past battles with GOP lawmakers — whether over Obamacare, immigration or the debt ceiling — saw a familiar pattern developing: Republican hard-liners pushing their party leaders toward what looked to be an untenable position that eventually could crack amid political pressure and internal strife.

Whether history repeats itself will determine whether Obama succeeds in making a third appointment to the nation's highest court — one that could tip the ideological balance for the first time in generations.

For now, Democrats believe that they have the upper hand and that Republicans are already beginning to splinter. Sen. Lisa Murkowski of Alaska was the latest Republican to say Obama's nominee "should get a hearing." That followed statements this week by Sen. Charles E. Grassley (R-Iowa), chairman of the Judiciary Committee, and Sen. Thom Tillis (R-N.C.) that Republicans should not rule out a justice until the nominee is named.

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Such statements indicated a break from Senate Majority Leader Mitch McConnell (R-Ky.), who said Saturday immediately after Justice Antonin Scalia's death was announced that Obama shouldn't even make a nomination but should leave the choice to his successor. Other Republicans went further, calling upon the GOP-controlled Senate to refuse to hold confirmation hearings on the president's nominee.

Republicans "will not be able to sustain this position," Vice President Joe Biden told Minnesota Public Radio.

"The Republicans are absolutely, thoroughly, totally irresponsible," said Biden, who as a former Senate Judiciary Committee chairman played a starring role in the 1991 confirmation battle over now-Justice Clarence Thomas.

Democrats say they are confident that if they remain unified, they will be able to push McConnell to give the president's nominee a hearing and a vote.

"There's no daylight between any part of the caucus on this," said one senior Democratic congressional aide, who spoke on condition of anonymity to discuss the situation candidly. "So you start from a position of unity where the Republicans are divided. Each day there is one or two other people who hedges their support for McConnell, or flat out backs off of it."

Democrats say Republican leaders have frequently embraced tough positions, only to later back down.

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In 2015, just months into the new Republican-controlled Congress, a band of conservatives insisted that it would not approve any funding for the Department of Homeland Security until the president reversed an executive action to defer deportations for up to 4 million immigrants in the country illegally. Days before a feared departmental shutdown, the agency's budget was approved without any restrictions.

In 2013, Sen. Ted Cruz (R-Texas) pushed the party into a budget standoff over demands to defund Obamacare. After a 16-day government shutdown, a spending bill was approved that included funds for the president's signature healthcare program. Republicans bore most of the blame for the shutdown.

Democrats cite similar examples, including threats to end funding for Planned Parenthood that only produced battles between the GOP's conservative and establishment wings while Democrats stood united on the sidelines.

"We've seen this movie before," said Sen. Charles E. Schumer (D-N.Y.), the third-ranking Senate Democrat. "The bottom line is very simple: When the hard right doesn't get its way, their immediate reaction is shut it down, and Sen. McConnell marches in lockstep. That's what happened in 2013 when the Republican leadership tried to shut down the government. They're doing it today with their attempt to shut down the Supreme Court."

Republicans reject the comparisons, and predict Americans will agree with their position.

They point to a poll released Thursday by CBS News that indicates the country is largely divided on the question of whether Obama should be allowed to make a choice. Forty-seven percent said the next justice should be appointed by Obama while 46% said the choice should be left for whoever is elected in November — a statistical tie.

If Democrats think Republicans are going to face intense pressure to cave, then "they have not met our base," one GOP strategist noted, also speaking on condition of anonymity.

Don Stewart, a spokesman for McConnell, said the majority leader's position had not budged. "His bottom line is there shouldn't be a nominee until we have a new president, period," Stewart said.

Republicans may also believe that they hold a better hand against the White House this time because, unlike in legislative battles, they have the power to call a confirmation hearing and their disapproval of a Supreme Court nominee would not be subject to a presidential veto.

McConnell will discuss strategy with members when the Senate returns Monday night, Stewart said.

Stewart also said it was House Republican leaders — not those in the Senate — who have had difficulty living up to their threats. He noted that McConnell had vowed that there would be no government shutdown this year, and had lived up to that promise.

Republicans, however, appeared to be struggling to coalesce around a united message. Grassley, who on Saturday called for Obama not to make an appointment and then a few days later suggested he would reserve judgment until the president announced his choice, appeared to return Thursday to his original position that there should be no nominee during an election year.

Even if Republicans ultimately relent and allow a nominee to be brought to a vote, recent history suggests it would be an uphill battle to confirm the choice. Democrats hold only 46 seats in the Senate, including two independents who caucus with the party, and 60 votes would be needed to overcome a likely filibuster.

Only nine Republican senators voted to confirm Obama's first Supreme Court nominee, Sonia Sotomayor, in 2009. And just three of those nine senators — Lamar Alexander of Tennessee, Susan Collins of Maine and Lindsey Graham of South Carolina — continue to serve today. Elena Kagan received just five Republican votes in 2010.

michael.memoli@latimes.com

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A version of this article appeared in print on February 19, 2016, in the News section of the Los Angeles Times with the headline "Can the GOP hold out on high court? - Democrats see the party splintering in fight to replace Scalia." — Today's paperToday's paper | Subscribe
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