Heritage calling for Supreme Court blockade if Clinton wins

Heritage calling for Supreme Court blockade if Clinton wins
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The conservative group Heritage Action is pushing Republican senators to keep the Supreme Court at eight justices if Democrat Hillary ClintonHillary Diane Rodham ClintonBiden says Russia spreading misinformation ahead of 2022 elections Highest-ranking GOP assemblyman in WI against another audit of 2020 vote Women's March endorses Nina Turner in first-ever electoral endorsement 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. 

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Dan Holler, Heritage Action’s vice president of communications and government relations, signaled that this year’s Republican blockade of President Obama’s nominee, Merrick Garland, is just the beginning of a fight that could last the entire first term of a Clinton presidency. 

“You’ve seen John McCainJohn Sidney McCainMeghan McCain on Pelosi, McCarthy fight: 'I think they're all bad' Democrats seek to counter GOP attacks on gas prices Biden nominates Jeff Flake as ambassador to Turkey 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 McConnellAddison (Mitch) Mitchell McConnellMcConnell: 'It never occurred to me' convincing Americans to get vaccinated would be difficult The 17 Republicans who voted to advance the Senate infrastructure bill Senate votes to take up infrastructure deal 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 TrumpFormer New York state Senate candidate charged in riot Trump called acting attorney general almost daily to push election voter fraud claim: report GOP senator clashes with radio caller who wants identity of cop who shot Babbitt 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 FlakeJeffrey (Jeff) Lane FlakeBiden nominates former Sen. Tom Udall as New Zealand ambassador Biden to nominate Jane Hartley as UK ambassador: report The Hill's Morning Report - Presented by Goldman Sachs - Voting rights will be on '22, '24 ballots 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 CruzRafael (Ted) Edward CruzGOP, Democrats battle over masks in House, Senate Human rights can't be a sacrificial lamb for climate action Only two people cited by TSA for mask violations have agreed to pay fine 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 SchumerChuck SchumerBiden to meet with 11 Democratic lawmakers on DACA: report Schumer's moment to transform transit and deepen democracy Pelosi, Schumer vow climate action: 'It is an imperative' 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 GrassleyThe 17 Republicans who voted to advance the Senate infrastructure bill Senate votes to take up infrastructure deal Capitol insurrection hearing exposes Trumpworld delusions 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.