On Supreme Court, Some Republicans Threaten Not to Do Their Jobs Indefinitely

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On Supreme Court, Some Republicans Threaten Not to Do Their Jobs Indefinitely

"If Hillary Clinton becomes president, I'm going to do everything I can to make sure that four years from now we've still got an opening on the Supreme Court," says Sen. Richard Burr

Republican Sen. John McCain has been accused of "officially leading the charge to paralyze the Supreme Court." (Photo: Gage Skidmore/flickr/cc)

The GOP's U.S. Supreme Court blockade could last through a potential Hillary Clinton presidency, some Republican senators are warning.

Already, Senate Republicans have held up the nomination of Merrick Garland, President Barack Obama's choice to fill the high court seat left vacant by Justice Antonin Scalia's death, for more than 230 days.

Now, a handful of GOP leaders say that stonewall could last four years, or indefinitely.

Sens. John McCain of Arizona, Richard Burr of North Carolina, and Ted Cruz of Texas have all made statements to that effect in recent weeks.

"If Hillary Clinton becomes president, I'm going to do everything I can to make sure that four years from now we've still got an opening on the Supreme Court," said Burr, who is fighting to keep his seat against challenger Deborah Ross.

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"As for Cruz," NPR reported Thursday, "he suggested there is nothing sacrosanct about having nine justices. For support, he pointed to a statement made by Justice Stephen Breyer during an interview in which Breyer noted that the court has historically functioned with as few as five or six justices."

NPR added: "Breyer's friends say the justice was mortified to see his historical observation used for political purposes, though he has not commented publicly on Cruz's statement."

And other "distinguished conservative legal minds...have all begun the arduous intellectual work of discovering why the Constitution demands that Clinton be denied a ninth justice," Jonathan Chait wrote at New York magazine this week, citing Cruz in addition to constitutional scholar Michael Paulsen and Cato fellow in constitutional studies Ilya Shapiro.

Meanwhile, the conservative Heritage Foundation has been fundraising on the same strategy.

But "[s]uch a blockade would represent a major escalation in the judicial wars that have been waged in the Senate since the 1980s," the New York Times noted on Thursday.

The Atlantic wrote of its potential implications:

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In addition to the potential for ties, one other major problem with this drift in Court politics is the precedent it sets. No Democratic president would be able to appoint any nominee as long as she or he did not have a Democratic Senate. (Democrats are already discussing eliminating the filibuster if they win the Senate, and Republicans have talked about doing the same.)

Once such a precedent was in place, a Democratic Senate would surely refuse to confirm any Republican presidents' nominees if at all possible. Consequently, American government would only function when a single party had complete control—control of the Senate and the White House, and then by virtue of those, control of the Supreme Court, since a president of either party would almost certainly choose to appoint a full complement of justices if possible. The United States could end up ungovernable except under one-party rule.

Unsurprisingly, the strategy has drawn the ire of Democrats (and even some Republicans).

McCain's Democratic opponent, Ann Kirkpatrick, blasted the incumbent senator this week for "leading the charge to paralyze the Supreme Court."

"John McCain has turned his back on his constitutional duty to do his job because he has changed after 33 years in Washington," said Kirkpatrick spokesperson D.B. Mitchell on Thursday. "McCain cares more about trying to save his political career than doing what's right and filling the Supreme Court. McCain is leading the way toward a constitutional crisis that will only hurt Arizona families."

And Obama has fired back on the campaign trail, too, telling a crowd in Raleigh on Wednesday: "Eleven years ago, Richard Burr said a Supreme Court without nine justices would not work. Well, what changed? What, only Republican Presidents get to nominate judges? Is that in the Constitution? I used to teach constitutional law. I've never seen that provision."

Groups and individuals continue to tweet about the blockade under the hashtags #DoYourJob and #WeNeedNine:

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