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The Senate and the Court

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We’ve been hitting this point for months, but once again, if the Democrats don’t take the Senate, Republicans simply will not allow Hillary Clinton to name a justice to the Supreme Court, and very few if any to the lower courts. John McCain’s “flub” from last week saying this out loud was of course a flub only in that it was a little early to talk about it. But it’s certainly the plan.

In a stunning political move, conservatives are already strategizing on how to block any future Supreme Court nominee from moving forward during Hillary Clinton’s presidency before the election even happens.

“I don’t think there is precedent for it. It really does reveal just how politically charged and polarized our judicial politics have become,” said Charles Gardner Geyh, a professor of law at Indiana University who advised then-Sen. Joe Biden (D-DE) during the 1991 confirmation hearing of Justice Clarence Thomas. “We are at risk of losing legitimacy as a nation in terms of being able to govern effectively.”

A number of Republican lawmakers and scholars have already begun openly rationalizing why Clinton shouldn’t be allowed to appoint Supreme Court justices. (These are many of the same people who argued President Obama shouldn’t get a nominee in the last year of his term because it should be up to the person who wins the November election.)

Sen. Ted Cruz (R-TX) told reporters that the Senate would have a “debate” about whether to accept Clinton’s nominees and that there was nothing wrong with having just eight justices.

“You know, I think there will be plenty of time for debate on that issue,” Cruz told the Washington Post, when he was asked if the Senate would move forward with Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. 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.”

Cruz’s suggestion that the Supreme Court may continue to operate without another justice under Clinton also casts the stakes of U.S. Senate races across the country in a new light. If Republicans do hold the majority, will they follow Cruz’s lead and refuse to move forward with any of Clinton’s nominees no matter the nominee’s record or qualifications?

I fail to see how this is stunning, unless you still believe that Mitch McConnell cares about Senate traditions. What’s stunning is that reporters would find this stunning. This is why it’s not more important to win the Senate than the presidency, but it is almost as important.

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