“I’ll consider any nominee on his or her own merits,” Sen. Tom Cotton said. | AP Photo Sen. Cotton won't join indefinite Supreme Court blockade

Sen. Tom Cotton (R-Ark.) won’t endorse a strategy to indefinitely block any Supreme Court nominee from Hillary Clinton — instead indicating he would keep an open mind on whomever she may choose should she win the White House next Tuesday.

In recent days, more Senate Republicans have suggested that any justice Clinton may nominate for the Supreme Court would face indefinite resistance, leaving open the possibility that the court would remain short-handed under a Clinton presidency. But some conservatives, like Cotton and Sen. Jim Inhofe (R-Okla.) said Thursday they do not support a strategy of a blanket blockade.


Cotton emphasizes that he’s unlikely to help confirm a nominee from Clinton anyway, considering what the Democratic candidate has said about the kinds of justices she would prefer. Still, the freshman Arkansas senator wasn’t going along with comments from Republicans such as Sen. Richard Burr of North Carolina and Ted Cruz of Texas that hinted at a permanent blockade of a potential Clinton nominee.

“I’ll consider any nominee on his or her own merits,” Cotton said in a phone interview with POLITICO on Thursday.

The Republican referred to Clinton’s description of Supreme Court justices she would choose during the third presidential debate last month. There, Clinton called for jurists who would “stand on the side of the American people” — by protecting precedent on gay rights and women’s issues, while overturning the Citizens United decision on campaign finance.

“I have major disagreements with my opponent about these issues and others that will be before the Supreme Court,” Clinton said during the debate. “But I feel that at this point in our country's history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say, the Supreme Court should represent all of us.”

That, in Cotton’s view, was a “long list of left-wing priorities” that suggested she would use litmus tests to determine whom she would choose for the Court.

“She did not use the word ‘Constitution,’” Cotton said Thursday. “If that’s her approach, [it’s] hard for me to imagine supporting any of her nominees.”

Likewise Inhofe said on Thursday afternoon that though the GOP might initially reject a Clinton nominee that was too liberal, if she tacked to the center Republicans could find an acceptable nominee.

"She could always get to the point where ... each nomination will come a little closer to us, I would anticipate. Until finally her choice would be: Are we going to maintain an eight-person court or would we have someone in there that we might be able to work with," Inhofe said. "If she came up with somebody really good, yeah, I'd be for her."

Both Cotton and Inhofe, of course, predicted that Donald Trump will win on Tuesday. And Cotton noted that Trump had said he would nominate Supreme Court justices who would adhere to the Constitution. Trump also stressed at the third debate that he would choose jurists who are “pro-life.”

An internal feud has begun to brew in the Senate Republican Conference, with GOP senators differing dramatically on how to handle judicial nominees should Clinton win the White House.

Burr told Republicans in a private gathering that he would “do everything I can do to make sure that four years from now, we still got an opening on the Supreme Court” should Clinton be elected, according to audio of the event obtained by CNN. Cruz has not been that explicit, although he said recently that “there is long historical precedent for a Supreme Court with fewer justices” and urged voters to elect a Republican president and maintain the GOP majority in the Senate, which has the power to confirm or reject court nominations.

But Sen. Jeff Flake (R-Ariz.), a member of the Judiciary Committee who is calling for Senate Republicans to take up Merrick Garland’s nomination in the lame-duck session, flatly disagrees with that strategy.

For nearly nine months, Senate Majority Leader Mitch McConnell (R-Ky.) has kept together most of his GOP rank and file to deny President Barack Obama his chance to fill the Supreme Court vacancy triggered by the death of Justice Antonin Scalia in February. McConnell has also said repeatedly that the Senate will not take up Garland in the lame-duck session, regardless of the results on Nov. 8.

Asked whether the prospect of a liberal justice from Clinton changed his view on whether Garland should be confirmed in the lame-duck session, Cotton declined to explicitly rule it out — but more because he thinks Trump would be filling the vacancy.

“We’ll see what happens on Tuesday,” Cotton said. “I think Sen. McConnell has said we’re going to wait until the inauguration for this vacancy to be filled. The bigger concern about Hillary Clinton is that she seems to be listing just a series of litmus tests for each nominee.”

Cotton added: “We’re going to confirm someone from Donald Trump’s list of nominees.”