The conservative group Heritage Action is pushing Republican senators to keep the Supreme Court at eight justices if Democrat Hillary ClintonHillary Rodham ClintonIndependent investigation into Russian interference needed Obama and Trump haven’t talked since inauguration Perez, Ellison start multistate ‘turnaround tour’ for Dems MORE is elected president.
In a Thursday morning briefing at the Heritage Foundation’s Washington headquarters on Capitol Hill, the group said Republicans should embrace the idea of leaving the Supreme Court without its ninth justice, perhaps for as long as five years.
“You’ve seen John McCainJohn McCainFortune's 'Greatest Leaders' list includes Samantha Bee, snubs Trump McCain: Nunes's actions 'very disturbing' McCain calls North Korean leader a 'crazy, fat kid' MORE and others talk about the need to not confirm any liberal nominated to the Supreme Court,” Holler said. “That’s exactly the right position to have.”
It’s “unacceptable,” he added, for moderate Republican senators to roll over and allow a President Clinton to shift the court radically to the left.
Holler said the obstruction of any Clinton Supreme Court appointee is going to require “an immense amount of willpower” from Senate Republicans.
Republican maneuvering over the Supreme Court has played a smaller-than-expected role in the 2016 election. When Justice Antonin Scalia died in February, Senate Majority Leader Mitch McConnellMitch McConnellMcConnell’s gambit to save the Supreme Court paid off Overnight Healthcare: High drama for ObamaCare vote | Freedom Caucus chair 'optimistic' about deal | Trump woos right High drama for ObamaCare vote MORE (Ky.) enraged liberals when he immediately declared that his party wouldn’t consider a nominee until after the election.
Many assumed the Supreme Court would become a hot election issue, but GOP nominee Donald TrumpDonald TrumpHarmful budget cuts won’t help GOP in 2018 and beyond McConnell’s gambit to save the Supreme Court paid off Tillerson to embassies: ID groups for tougher screening MORE talks about it only sparingly and usually only when he needs to energize Republicans who mistrust his conservatism.
The Supreme Court has been operating with eight justices since Scalia’s death. The current configuration can often decide the vast majority of cases, but there have been several 4-4 rulings that prevented the court from making a decision.
Republicans who are more willing to compromise, including Arizona Sen. Jeff FlakeJeff FlakeTop Trump aide calls GOP senator a 'hater' Overnight Tech: Senate moving to kill FCC's internet privacy rules | Bill Gates pushes for foreign aid | Verizon, AT&T pull Google ads | Q&A with IBM's VP for cyber threat intel Senate on the verge of vote to kill FCC's consumer privacy protections MORE, believe the party should hurry to nominate Garland in the lame-duck session of Congress if Clinton wins on Nov. 8. The Flake argument is that Clinton would likely nominate a younger and more left-wing justice than Garland, so if Trump loses, Republicans are better off confirming Obama's nominee.
The Heritage Foundation, a group that enjoys significant sway on the right, wholly rejects such thinking. They want Republicans to get comfortable making the case that the court can function just fine with eight justices.
Texas Sen. Ted CruzTed CruzTrump defends several unsubstantiated claims in interview Budowsky: Trump’s war against truth Five takeaways from Labor pick’s confirmation hearing MORE, an ally of Heritage’s, has been laying the ground for this new fight.
“You know, I think there will be plenty of time for debate on that issue,” said Cruz, after a campaign rally in Colorado last week, in response to a question about whether a Republican Senate should hold votes on a President Clinton’s nominees.
“There is certainly long historical precedent for a Supreme Court with fewer justices,” added Cruz, according to The Washington Post. “I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”
Holler fully endorses the Cruz line of thinking.
Pressed on whether he was comfortable going five years without a ninth Supreme Court justice, Holler said there’s “nothing sacrosanct about the number of nine justices.”
“The system that we have set up is one of checks and balances,” he said on Thursday. “The president can certainly nominate somebody, but it’s incumbent upon the Senate to say ‘yes, this person is suitable for that role.’"
“And it’s perfectly within the realm of Republican senators’ rights and prerogatives and with the Constitution and what they campaigned on,” he added, “to say ‘this person will not uphold the Constitution and therefore they don’t deserve to be appointed to the bench.’”
What all this means for Clinton, should she win the presidency, rides to a large extent on which party controls the Senate.
If Democrats win control over the Senate, the likely new majority leader, Charles SchumerCharles SchumerSenate Dems: We won't help pass additional health bills Gorsuch hearings: A referendum on Originalism and corporate power We must act now and pass the American Health Care Act MORE (N.Y.), could deploy the so-called nuclear option for a Supreme Court nomination. That would mean changing Senate rules to allow nominees to be confirmed with a simple majority of 51 votes instead of the 60 required to break a Republican filibuster. It’s an extreme move, but not unimaginable given the stakes.
If Republicans hang on to the Senate, however, they can cause huge headaches for Clinton if enough of them buy into the Cruz-Heritage approach.
Holler wouldn’t discuss his private conversations and planning, but it seems clear that Heritage Action, the activist arm of the group, is going to aggressively take up this Supreme Court fight if Clinton wins.
He said he doesn’t accept the view — advanced by Democrats and the media — that obstructing Supreme Court justices is an electoral killer for Republicans.
Many predicted that Sen. Chuck GrassleyChuck GrassleyLive coverage: Day three of Supreme Court nominee hearing Live coverage: Day two of Supreme Court nominee hearing Grassley, CNN host spar over Trump wiretap claims MORE (R-Iowa) would suffer electorally because, as chairman of the Judiciary Committee, he didn’t give Garland a hearing. Grassley has already proven those pundits wrong and looks like he’ll easily win his race, Holler said, pointing to the wide gap in polls.
Holler praised a National Review op-ed written by Heritage’s James Wallner and John Malcolm. In it, they argue that “senators have a sworn obligation to reject nominees who, they believe, would fail to uphold the Constitution.”
In Holler’s ideal world, every Republican senator in 2017 would fully absorb the Wallner-Malcolm philosophy and start playing hardball.
“Very simple,” he tweeted Thursday, copying a link to the article.