On Sunday, I wrote that President Obama and Democrats want a fight over the Supreme Court, and that by declaring in unison that a black Democrat in the last year of his presidency isn't really president, Republicans conceded that their opposition to any potential nominee will be purely political rather than substantive.
It seems that already, the Republicans have realized what a political catastrophe they will cause for their party in November if they pick this fight with the president, and they have already begun to walk it back.
Republican Sen. Ron Johnson of Wisconsin refused to go along with his leadership on Tuesday, declaring "I will fulfill my constitutional role in voting." Even Senate Judiciary Chair Chuck Grassley of Iowa refused to rule out hearings as other GOP senators are worrying out loud about being branded obstructionists as a result of their party's opening salvo. Lisa Murkowsky of Alaska and Dean Heller of Nevada are Republicans who want hearings. The Republican message has been muddled, and to the extent there is a message, it has now whittled down to Yes, I guess we have to vote on the president's nominee, but we can vote NO!
But for one thing, as I argued Sunday, it would be much more difficult for Republicans now to make the case that the president's nominee - whomever it may be - should be rejected on the merits after they spent an entire weekend loudly proclaiming that merits of the nominee are irrelevant and what they really want to do is strip the president of his Constitutional authority for the remainder of his presidency.
For another, all Democrats need to do is peel away just 4 Republicans (there are currently 44 Democrats and 2 independents in the Senate caucusing with the Democrats) for the President's nominee to be confirmed with Joe Biden's tie-breaking vote. The senior-most Republican in the Senate, Orrin Hatch of Utah, has already tipped his hands that he is willing to vote for at least one previous Obama appointee to the federal bench, Sri Srinivasan, calling him a "fine person". Hatch also opposes a filibuster to prevent a vote on the president's eventual nominee.
In the mean time, retired Justice Sandra Day O'Conner, a Reagan appointee no less, has waded into the battle and said that President Obama ought to pick Scalia's replacement.
That means plenty of Republicans will have cover to break a filibuster by their colleagues, and at least a few are willing to declare victory by "forcing" the president not to pick an ideological nominee and just get themselves out of the rut their leadership put them in.
The GOP is already scrambling in this fight, and the President hasn't even nominated anyone yet. Once he does, this will get more interesting.
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