Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
WASHINGTON – Supreme Court Justice Antonin Scalia’s unexpected death Saturday has put Senate Republican incumbents including Pennsylvania’s Pat Toomey on the hot seat as they stand for re-election.
The most vulnerable – including Mr. Toomey, Kelly Ayotte of New Hampshire and Rob Portman of of Ohio – assert that a replacement should not be nominated until a new president takes office. They stopped short, however, of saying they would block a confirmation vote.
“Given that we are already well into the presidential election process and that the Supreme Court appointment is for a lifetime, it makes sense to give the American people a more direct say in this critical decision,” Mr. Toomey said in a written statement, that echoed the sentiments of Senate Majority Leader, Mitch McConnell of Kentucky.
Sen. Elizabeth Warren, D-Mass., said the people have already had their say “when President Obama won the 2012 election by 5 million votes.” Democrats like her say it is the president’s constitutional responsibility to nominate justices, and that doesn’t change in an election year.
Mr. Toomey agreed that Mr. Obama has the authority to nominate but said, “Let’s be clear: His nominee will be rejected.”
On Monday night, addressing Allegheny County Republicans at the annual Spirit of Lincoln Dinner Monday night, Mr. Toomey said that the best way to protect Justice Scalia's legacy would be "to ensure that it is the next president, not the current president, who picks his replacement."
"That is exactly what we are going to do," he said to enthusiastic applause.
Democrats, though, say Mr. Toomey has been partisan in other lower level court nominees. They accused him of blocking the appointment of Judge L. Felipe Restrepo of Philadelphia for the 3rd Circuit Court of Appeals. Judge Restrepo was confirmed last month, 14 months after his nomination. The delay was partly attributed to Mr. Toomey, who waited a year to return a “blue slip” – a paper that a nominee’s home-state senators must sign before nomination hearings.
Mr. Toomey initially dodged questions about why he withheld the blue slip, but later said he was waiting for the Judiciary Committee to finish vetting Mr. Restrepo.
Democrats and court observers, though, say Mr. Toomey and other Republicans who blocked other confirmations appeared to be intentionally blocking nominations as retribution for the president’s executive orders on immigration or to punish Democrats for pushing through 11 judicial nominees in the 2014 lame duck session just before the GOP took control of the Senate.
Mr. Toomey’s challengers already are on the attack.
Democratic Senate candidate and former state secretary of environmental protection Katie McGinty on Monday accused Mr. Toomey of playing politics with Judge Restrepo’s nomination. She said he appeared to be headed toward handling the Supreme Court nomination similarly.
“He has offered no evidence that he will honor the Senate’s responsibility to maintain a full bench on the Supreme Court,” Ms. McGinty said in a statement early Monday.
Braddock Mayor John Fetterman, who also is running for the Democratic nomination, issued a missive hours ahead of Mr. Toomey’s remarks.
“The self-serving negligence we are seeing from the GOP is the reason everyone hates Congress, and is simply disrespectful to the American people. So which is it, Sen. Toomey: will you do your job, or choose partisanship over patriotism?” Mr. Fetterman said in a written statement.
Democratic Senate candidate and former congressman Joe Sestak also issued a statement Monday.
“It’s time for Pat Toomey to fulfill his duty to the people of Pennsylvania and vow to quickly consider a new Supreme Court justice rather than marching lockstep with partisan obstructionists in Washington, D.C.,” Mr. Sestak said. “With so many pressing issues before the court like the Voting Rights Act, protecting women’s right to choose, reversing Citizens United and affirming the need to regulate polluters, the Senate must act swiftly.”
Mr. Toomey and other vulnerable Republicans like him are in a tough spot. They have to choose between rebelling against caucus leadership or facing the wrath of constituents including many swing voters who are tired of partisan politics.
Twenty-four of the 34 seats up for grabs in November are currently in GOP hands, and Mr. McConnell needs to keep them to retain power. That’s why he’s likely to be forgiving of rank-and-file who buck the party in order to stay in office, law scholars say.
“McConnell needs to be sure his folks get re-elected, and near the top of that list is Toomey, so he can hardly afford to let Toomey look like an obstructionist,” said Carl Tobias, a University of Richmond law professor who tracks federal court vacancies.
The latest Democratic voter survey by Harper Polling shows Mr. Sestak winning the primary by a plurality. In a general election matchup, Mr. Sestak leads Mr. Toomey 41 percent to 38 percent, according to Public Policy Polling’s latest survey, but the results are within the margin of error.
Waiting for a Republican president could backfire if Democrats win back control of the Senate.
“I think Leader McConnell understands the political calculations of people like Pat Toomey, Kelly Ayotte in New Hampshire and others who might need some leeway in their votes,” said University of Pittsburgh Professor of Law Arthur D. Hellman. “Sometimes loyalty to the party is about holding onto the seat for the party.”
Mr. Obama could nominate a judge who is moderate or maybe even slightly right of center in order to make Republicans appear more partisan before an electorate that’s tired of partisan politics.
“If the president pushes too far to get the kind of justice he really wants then it makes it very easy for the Republicans to say no, but if he holds back to make it more likely that his nominee will get through then he’s not changing the country in the way he would like to. He has to strategize,” Mr. Hellman said.
U.S. Sen. Bob Casey, D-Pa.,. meanwhile, is standing with caucus leaders who say it’s irresponsible to let a Supreme Court vacancy remain empty for a year.
“The idea, voiced by some Senate Republicans, that they would cripple the highest court of the land for a year by refusing to consider a nominee is irresponsible and an abrogation of the Senate’s obligations,” said Casey spokeswoman Jacklin Rhoads. “The next president doesn’t take office for another 340 days. During that time the Senate has an obligation to the American people to do its job.”
The Democratic Senatorial Campaign Committee also weighed in Monday. Press Secretary Lauren Passalacqua noted that many of the most vulnerable Republican incumbents have “fallen in line” behind Mr. McConnell. Among them, she said are Mr. Ayotte, Mr. Toomey, Rob Portman of Ohio, Roy Blunt of Missouri, Richard Burr of North Carolina, John McCain of Arizona and Rand Paul of Kentucky.
“This is a disservice to their constituents and to the Constitution they swore an oath to uphold. With this moment in mind, voters will turn out in November to elect people who will actually do their jobs,” Ms. Passalacqua said in a written statement.
Staff writer Chris Potter contributed. Washington Bureau Chief Tracie Mauriello: tmauriello@post-gazette.com; 703-996-9292 or on Twitter @pgPoliTweets.