“The American people should have a voice in the selection of their next Supreme Court Justice," Mitch McConnell said. | AP Photo McConnell throws down the gauntlet: No Scalia replacement under Obama The Senate majority leader's challenge to the president's nominating authority appears to be unprecedented.

Senate Majority Leader Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election — an historic rebuke of President Obama’s authority and an extraordinary challenge to the practice of considering each nominee on his or her individual merits.

The swiftness of McConnell’s statement — coming about an hour after Scalia’s death in Texas had been confirmed — stunned White House officials who had expected the Kentucky Republican to block their nominee with every tool at his disposal, but didn't imagine the combative GOP leader would issue an instant, categorical rejection of anyone Obama chose to nominate.


“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said, at a time when other elected officials, from Sen. Bernie Sanders to future Senate Democratic Leader Charles Schumer, were releasing statements offering condolences to the justice’s family, which includes 26 grandchildren.

“It was a real shocker,” said a senior White House official, speaking to POLITICO shortly before Obama, on a trip to California, announced his intention to send the Senate a nominee, citing Scalia’s own wishes for him to do so.

Many Republicans in Congress and in the 2016 presidential field unified behind McConnell, arguing that the timing of Scalia’s death — it would be the first confirmation vote since Anthony Kennedy to be held this close to an election — made it necessary to leave the appointment to the next elected president. Despite McConnell’s claim, no Senate leader has ever asserted a right — and there is no precedent for a sitting president to hand over his power of high-court appointment at the request of any member of the legislative branch.

Former Secretary of State Hillary Clinton, speaking at a campaign event in Colorado, blasted McConnell's move as "outrageous."

"Elections have consequences," she said. "The president has a responsibility to nominate a new justice and the Senate has has a responsibility to vote."

Senate Minority Leader Harry Reid (D-Nev.) also lined up firmly behind Obama.

"The President can and should send the Senate a nominee right away,” he said in a statement. “It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities.”

"We've never had vacancy and nomination [for] a year that didn't get voted on," Sen. Patrick Leahy (D-Vt.), the top Democrat on the Senate Judiciary Committee, said in an interview on Saturday night. "Obama's been elected twice, you have to assume if Mitt Romney had been elected he'd be making this nomination."

Leahy also bashed McConnell for sidestepping a nomination with the Senate's calendar bare for much of the summer.

"Cancel one of the vacations, one of the recesses," Leahy said. "If this was November then I could see ... at least making the argument. But it's February."

Yet calls to honor the tradition of high-court nominations were batted down almost immediately by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who indicated he has no plans to start up the confirmation process on his panel.

"This president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda," Grassley said. "It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

By using his power as chairman to block a vote in committee, Grassley can box out Reid or other Democrats from trying to call up a nomination on the Senate floor, as Reid threatened to do when Loretta Lynch was a nominee to be attorney general. And McConnell can stop Obama from recess appointments by scheduling pro forma sessions of the Senate.

Deeming McConnell's actions a historic rebuke to the president, Democrats pointed to Kennedy's confirmation in 1988, the last year of Ronald Reagan's presidency, and quickly circulated statistics showing that since 1975, Supreme Court nominees have on average waited 67 days for a confirmation vote.

McConnell’s move was all the more surprising considering his role as a self-appointing guardian of Senate tradition; But, more than anything, it reflects McConnell’s adjustment to his party’s ascendant right wing — and his controversial statement, during Obama’s first term, that his prime motive was to deny the president a second term in office. His declaration sets up a bruising political fight — welcomed by many Democrats — with Obama along with most of the GOP field.

McConnell usually waits to sound out his caucus before moving forward on such a weighty decisions, but his blockade fits a pattern of skirmishing on judicial appointments with the White House and Reid. McConnell has only allowed confirmations of 16 lower-court justices during his 14 months as majority leader, and a broad ideological swath of the party supports his efforts to shut down Obama's lifetime judicial appointments. No Republicans publicly broke with McConnell in the immediate hours after Scalia's death was reported.

But McConnell's decision also carries much risk: Republicans could very well lose the Senate in November. And by forestalling a replacement for the deeply conservative Scalia, McConnell could effectively keep the court deadlocked at a 4-4 ideological split between liberal and conservative justices.

Before the GOP leader had even put the hammer down, Sens. Rubio of Florida and Cruz of Texas had already urged McConnell to block a new confirmation. Rubio said the “next president” must nominate a justice equal to Scalia, while Cruz bluntly said it is the Senate’s duty to put the brakes on confirmation for a year.

“Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement,” Cruz said on Twitter.

Still, the issue will have a major effect on the Senate given the tight battle for control of the chamber in the fall — and over confirmation of the next Supreme Court justice. McConnell’s 54-seat majority is up for grabs with 24 GOP seats in play, and Democrats are eager to turn any signal of obstruction into an election issue, particularly in blue and purple states where Obama is more popular.

"The Senate Republicans will sacrifice their majority and their best shot at the White House on the altar of Ted Cruz if they block this nomination," said one top Democratic stategist.

Sen. Richard Blumenthal (D-Conn.), who is up for reelection and could face conservative CNBC personality Larry Kudlow as a Republican challenger in the fall, said that Obama should nominate someone regardless of McConnell's stance.

“My hope is that the president will promptly nominate someone with strong intellect and integrity who can win bipartisan support. I will work vigorously as a member of the Judiciary Committee to achieve confirmation," said Blumenthal, another Judiciary Committee member.

Though McConnell has sought to avoid damaging shutdowns and debt defaults to preserve his majority, the GOP leader made clear on Saturday he doesn't view shuttering confirmations to the Supreme Court the same way.

And even if he wanted to work with the White House on a compromise pick, it would be exceedingly difficult. In 2013 Reid changed the Senate rules to override filibusters and confirm nominees by a simple majority — but left the Supreme Court hurdle untouched at 60.

Senators from both parties fought back an effort last year to lower the Supreme Court confirmation voting threshold to 51. Democrats balked at the possibility of facing easy confirmation of an anti-abortion justice under a Republican president, while Republicans wanted to protect an influential filibuster power from further degradation.

The bipartisan opposition to that change means that the business of sending new justices to the nation’s highest court remains a uniquely difficult task during even the most serene of political times.

