As President Obama moves closer to choosing a Supreme Court nominee, Democrats appear to have settled on a conclusion: His best political play is the least political one.
Rather than lobby him to choose a champion of liberal ideology or a symbolically historic appointment, many in the president's party have come to support his view that he should focus on finding a replacement for the late Justice Antonin Scalia who has unchallenged legal credentials.
Obama said during a Rose Garden news conference Thursday that Republicans' vow not to even meet with his nominee isn't a factor in his selection and that he wanted to quickly nominate an “eminently qualified” replacement.
“It will then be up to Senate Republicans to decide whether they want to follow the Constitution and abide by the rules of fair play that ultimately undergird our democracy,” Obama said.
His framing of the issue mirrors Senate Democrats' assessment — that Republicans are hurting themselves by refusing to commit to hearings or a vote on the nominee. Democrats predict that voters will view Republicans' stance as a cynical, partisan ploy, particularly if Obama chooses a middle-of-the-road jurist who won bipartisan support on Capitol Hill for a lower-court appointment.
“A mainstream nominee with bipartisan appeal is what we need, and that's what the president will do,” said Sen. Charles E. Schumer of New York, a member of the Judiciary Committee and the likely Democratic leader in the Senate next year.
Two of the names most often at the top of Democrats' list fit that billing: Merrick Garland, the chief judge on the Court of Appeals for the District of Columbia Circuit and an oft-mentioned candidate for previous nominations; and Sri Srinivasan, confirmed to the same court unanimously by the Senate in 2013.
Paul J. Watford, a judge on the 9th Circuit Court of Appeals and former appellate lawyer in Los Angeles, also appears to be on the president's short list of potential candidates.
The White House has avoided responding to potential picks being batted around Washington in the last week and even declined to say whether Obama had settled on a short list.
“The president has cast a wide net in considering potential nominees,” White House Press Secretary Josh Earnest said Wednesday. “The White House has taken seriously the range of suggestions that we have received from senators and other experts.”
But both Garland and Srinivasan would be seen as nods toward compromise in a process bogged down by partisan politics in an election year.
Senate Democrats have held several closed-door meetings to discuss the court battle with party strategists with ties to the White House, and they discussed polling that shows the public strongly opposed to the notion that a Supreme Court seat would be left vacant for an extended period. The Democratic members of the Judiciary Committee met with senior members of the White House vetting team to discuss the process Thursday.
Democratic voters tend to see any refusal by Senate Republicans to consider the nominee as an affront to the president. Independent voters also largely disapprove of the tactic, perhaps viewing it as another example of the kind of Washington gridlock that has soured them on the political establishment.
A new NBC News/Wall Street Journal poll found that 48% of those surveyed thought the Senate should vote on a replacement while 37% thought the seat should be left vacant. Only 28% of voters approved of the decision not to hold hearings or vote on the nominee, while 55% disapproved.
That's the kind of reaction from voters that Senate Democrats will seize on for fall campaigns, even as Republicans insist any blowback against them is likely to be short-lived.
“There are few federal issues that people even notice. They notice this one,” said Sen. Richard J. Durbin of Illinois, the Democratic whip. “It is very graphic … [and] voters say, ‘That ain't right, that isn't fair, that isn't why these people were elected, and that's a good illustration of why Washington's not working.'”
On Tuesday, Democrats welcomed to their weekly caucus luncheon Patty Judge, newly recruited to run against Sen. Charles E. Grassley, the popular Iowa Republican who now chairs the Judiciary Committee.
Judge, a former Iowa lieutenant governor and agriculture secretary, entered the race last week saying she is “the Judge [that] Chuck Grassley can't ignore.”
“We will continue to talk about Sen. Grassley's obstruction of the hearings,” she said as she entered the Capitol. “Iowans believe in doing the job you're assigned to do — whatever that job is.”
During a meeting of the judiciary panel Thursday, Republican Sen. Lindsey Graham of South Carolina seemed to caution his colleagues about whether their strategy might backfire.
“Assume for a moment [Hillary Clinton] is president,” he said. “I'm telling everybody on my side, she's going to pick somebody probably more liberal than President Obama's going to send over in a few days. And I'm going to vote for that person if I think they're qualified.”
But other Republicans maintain their position is defensible, consistent with what they say is the Senate's co-equal role in the process to offer advice and consent — or in this case the lack thereof.
Sen. Orrin G. Hatch of Utah, the most senior Republican member of the Judiciary Committee, insisted that the question was “when, not whether” the Senate considers a nominee.
Schumer said the GOP position is simply borne out of political necessity, since the more complete airing a qualified nominee has in the Senate, the more likely he or she is to be confirmed.
“If you have a mainstream nominee, it tends to move in the direction of approval,” he said. “That's why the hard right told [Senate Majority Leader Mitch] McConnell immediately, ‘Don't even go forward on this.' Because they're afraid the process works.”
Sen. Dan Coats (R-Ind.), who helped guide Justice Samuel A. Alito Jr. through the confirmation process in 2005 and 2006, said voters respond to the argument that a president who has “ignored the Constitution to achieve his own ends” should not be tipping the balance of the court.
But he also warned that Republicans would see political motive in whatever Obama ultimately decided to do.
“We will see it as a political ploy,” Coats said. “Either designed to fail and blaming us for it failing, [or] designed to force us potentially into a filibuster, which the Republicans have never done. Because we have no trust that he's going to have the right motives in this.”
Lisa Mascaro and Christi Parsons in the Washington bureau contributed to this report.
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