Mark Barrett

mbarrett@citizen-times.com

U.S. Sen. Richard Burr, R-N.C., told Republican supporters Saturday he would try to keep a vacant seat on the U.S. Supreme Court empty for four years if Hillary Clinton is elected president, a shift from his position in February.

Burr, who is in a tight contest for re-election with Democrat Deborah Ross, made the comment in a surreptitiously recorded conversation in Mooresville first reported by CNN. He backed away from it somewhat in a statement Tuesday.

The Saturday conversation is the same one in which Burr joked about whether a photo of Clinton on the cover of American Rifleman, a magazine published by the National Rifle Association, should have a bulls-eye on it. Those remarks have been widely reported and condemned, and Burr apologized Monday.

The Supreme Court was reduced to eight members in February when Justice Antonin Scalia died. Burr said then and when President Barack Obama nominated appellate court judge Merrick Garland to the court in March that the decision on Scalia's replacement should wait until after the presidential election to give the American people the chance to weigh in.

But in Saturday's meeting in Mooresville, Burr said, "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."

Burr told supporters that an eight-member court would mean some rulings by lower courts like the one Garland sits on would stand as is, "But I think on the things that are important to the country, there's a better chance that the lower court or the appellate court will get the right answer before it gets to the Supreme Court."

Shortly after Scalia died, Burr tweeted, "The American people deserve a say. The Supreme Court vacancy should not be filled until there is a new President."

When Obama nominated Garland, Burr issued, a two-sentence statement: "The American people deserve a voice in the nomination of the next Supreme Court Justice. This appointment could easily tip the balance of the court in a direction not supported by the American people as evidenced by 2014's election results giving Republicans both the Senate and the House."

In response to questions from the Citizen-Times on Tuesday, Burr took a more moderate stance than he did in the recorded conversation Saturday.

"I will assess the record of any Supreme Court nominee, but clearly Hillary Clinton has a long history of backing liberal judges," Burr said in an emailed statement Tuesday. "I believe any nominee for a lifetime appointment to the federal courts should judge impartially, and in accordance with the Constitution. I will reject any candidate whose record indicates they will use the Court to put in place their personal or political agenda, or who will not rule in accordance with law and the Constitution."

He did not explain the change in his position.

Empty chairs

U.S. Sen. Ted Cruz, R-Texas, raised the possibility last week of leaving the Scalia seat open or at least moving slowly to fill it. U.S. Sen. John McCain gave the idea some support earlier in October but then walked back his comments.

The delay Burr discussed would be more than double the longest wait ever to fill a seat on the court, from April 1844 to August 1846, according to Pew Research Center. Since the Civil War, only one vacancy lasted longer than a year.

The number of justices on the court is set by law, not the Constitution. Some conservative scholars argue that the court could function well without as many members, but other experts on the court's work and many other Republican senators reject the idea of not considering a president's nominee over a long period of time.

Asked about the possibility last week, conservative Justice Clarence Thomas said, "The city is broken in some ways," Bloomberg news service reported. "At some point, we have got to recognize that we’re destroying our institutions."

On Saturday, Burr told supporters it is "not tough for me" to hold a judge's seat open. He cited the fact that a federal judgeship in eastern North Carolina has remained open 10 years, the longest period in history, at his behest.

He said on the recording that the Obama administration had reneged on its promise to support Burr's preferred candidate for a judgeship if Burr backed an Obama candidate. He said Obama had told him in a telephone call that the deal was good only for Obama's first term.

Burr said he responded, "Let me make you a promise. This seat will be vacant on the day you go out of office."

In the line of fire

Burr recounted to supporters Saturday seeing a copy of American Rifleman a few days before.

"It's got a picture of Hillary Clinton on the front of it. I was a little bit shocked that it didn't have a bull's-eye on it," he said on the recording.

He apologized Monday afternoon shortly after CNN published the recording: "The comment I made was inappropriate, and I apologize for it."

Ross told The Associated Press the remark was "not befitting a senator."

"I think it's a comment about violence against a candidate for the president of the United States, and they're irresponsible and wrong," Ross said in a telephone interview Tuesday.

Gun-control groups including former U.S. Rep. Gabby Giffords' group, Americans for Responsible Solutions, called Burr's comments dangerous in a country strained by disputes over gun rights.

Burr's comments normalize an attitude among some gun rights supporters that killing unfriendly politicians could be an option, Brady Campaign President Daniel Gross said Tuesday.

"We take from it a level of violent rhetoric that is dangerous and we need to say is unacceptable," Gross told the AP.

Ross said during a campaign appearance in Charlotte Tuesday that Burr is "putting politics ahead of his duty and ahead of the Constitution. And he's applying for a job by saying he's not going to do his job."

She called Burr's actions to keep the eastern North Carolina judge's job open "a dereliction of duty" and criticized his comment about putting a bulls-eye on Clinton.

"We should be able to have a civil discussion, and a civil society, and a civil election without talking about violence," Ross said. "It is the job of elected leaders and their campaigns to set an example for the next generation."

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