Republican Consulting

Court Vacancy Marks Final Clash for Reid, McConnell

By James Arkin

Real Clear Politics
March 07, 2016


For Sens. Harry Reid and Mitch McConnell, the vacancy on the Supreme Court represents one of the last and most significant clashes between the two longtime leaders of their parties.


Reid, the minority leader, and McConnell, the majority leader, have a combined six decades in the Senate and more than 20 years atop their respective caucuses – flipping titles as their parties flipped control of the upper chamber. But, as the years went on, their relationship became more tense and there’s no sign of it easing up despite Reid’s impending retirement at the end of the year.


In the waning months ahead, they face one of the most momentous issues of their tenure: a vacant seat on the bench that could shift the ideological balance of the Supreme Court for a generation.


McConnell put his foot down after the death of Justice Antonin Scalia, a conservative icon: no hearings, no votes, and no confirmation for a new nominee. The Senate, McConnell said, would not confirm a new justice until after the presidential election, giving the American people a chance to determine who would fill the seat.


Reid and his fellow Democrats were outraged.


“In recent years the Republican leader and his Republican senators have done everything possible to grind the wheels of government to a halt,” Reid said in his first speech on the Senate floor following Scalia’s death. “But now we are seeing something from the Republican leader that is far worse than his usual brand of obstructionism. We are seeing an unprecedented attempt to hold hostage an entire branch of government.”


McConnell, however, argued that if the two parties’ positions were flipped, it would be the same situation.

“If the shoe were on the other foot, do any of you think the Democrat majority in the Senate would be confirming a Republican president's nomination in the last year of his term?” McConnell asked reporters last week. “Of course not.”


The two sides’ positions are unsurprising – Reid wants President Obama, a Democrat, to name the court’s next nominee. McConnell doesn’t, preferring to wait until after the November election in the hopes that a Republican Senate can confirm a conservative nominee from a GOP president.


By tradition, the two leaders open the Senate floor every day the chamber is in session. It’s a time for each to lay out the vision and agenda of their respective parties. But the bickering and sniping between Reid and McConnell during these speeches has become a familiar sight to those who have observed their time in leadership.


“I think this is another day at the office for both of them,” said Hunter Bates, a former chief of staff to McConnell. “That being said, they know this is arguably the biggest issue of their joint tenures in leadership, and so while in many respects it’s another day at the office, the particular subject on which they’re disagreeing is immense and the consequences will be felt for a generation."


Reid’s strategy is to mount significant public pressure on Republicans and force them to change their position. In addition to speaking about the court’s vacancy in every speech on the Senate floor, Reid and his fellow Democrats have held one press conference on the steps of the Supreme Court and another with members of the Congressional Black Caucus. Plus outside groups have delivered petitions to the Republican leader urging him to take up the nomination.


Their general message is a simple one: “Do your job.”


“Do your job is a hell of a lot better message than some of the verbal linguistics that Republicans have been trying to attempt,” said Rodell Mollineau, a former communications aide to Reid.


The Nevada Democrat also has tied the vacancy to Donald Trump, the GOP front-runner for the presidential nomination, suggesting that Senate Republicans are waiting to “see what President Trump’s going to do.”


Republicans, however, have shown no signs of wavering. McConnell has repeatedly made the same argument: It’s the middle of a presidential election and the American public should weigh in on who fills the seat.


“My view, and I can now confidently say the view shared by virtually everybody in my conference, is that the nomination should be made by the president the people elect in the election that's underway right now,” McConnell said in his first press conference following Scalia’s death. “This vacancy should not be filled by this lame-duck president.”


McConnell has also made clear to conservative groups who have occasionally criticized him in the past that he has no intention of backing down on his decision not to confirm a nominee. He reassured a meeting of the House Freedom Caucus that he would hold the line on the nomination, and he and Judiciary Chairman Chuck Grassley met with groups including the National Rifle Association, Heritage Action and Judicial Crisis Network to discuss the upcoming battle over the vacancy, according to Politico.

Republicans view Reid’s tactics as familiar and frustrating. Asked about the pressure he has tried to generate around this issue, Sen. John Cornyn, R-Texas, pointed out that Reid has previously used the Senate floor to attack the Koch brothers and Mitt Romney’s tax returns.


“It’s part of an unfortunate pattern by the Democratic leader,” Cornyn said. “We may have to end up talking about some of his past charges that proved to be patently untrue, but that’s the game he chooses to play and we’ll have no alternative but to point that out."


They’ve also pointed to past statements from Democratic senators talking about not filling court openings in presidential years. In particular, they’ve highlighted a speech from then-Sen. Joe Biden in 1992, when he said a hypothetical vacancy in an election year should not be filled. They’ve adopted the moniker “the Biden rule.”


Despite the near constant attention this has received, one senior Republican Senate aide insisted the dispute won’t become a significant fight between Reid and McConnell because the nomination is going nowhere.


“It’s not going to be a battle because it’s not coming to the floor,” the aide told RealClearPolitics. “The Senate’s not going to act on it, so I don’t know if I’d call it a battle. They’ll do some outside work and some political stuff, but the Senate isn’t acting on it, so there won’t be floor action or a committee battle."


The Politics of It


With eight months to go until the election, the Supreme Court vacancy has become a major issue involving control of the Senate. Republicans hold a four-seat majority, but must defend 24 seats in November – seven in states Obama won twice – while Democrats are only defending 10.


Democrats have repeatedly targeted those vulnerable Republicans regarding Scalia’s seat, highlighting newspaper editorials in their home states pushing the lawmakers to take up the nomination and touting polls showing that the public supports hearings for a nominee. But the Republican base staunchly believes that Obama should not be allowed to fill this seat.


“This is one of those odd issues where Harry Reid and Mitch McConnell have both taken positions opposite each other, they both believe they are 1 million percent right on the politics, and in their particular positions, they’re both probably correct,” said a former Senate Republican leadership aide.


The aide cautioned that the political winds could shift once Obama names his nominee, but said that is unlikely.


“Our guys don’t want any nominee, no matter who it is, coming out of this White House,” the aide said. “Their guys think we’re obstructionist jackasses who are doing it out of spite, and neither of those views are likely to change.”


Their Relationship


Reid and McConnell’s time running the Senate has been marked by partisanship and gridlock, with the American people increasingly frustrated by Congress’ inability to get much done and those on both sides of the aisle pointing the finger at the opposition.


McConnell was elected to the Senate in 1984; Reid two years later. Both rose through the leadership ranks, starting as party whip, to ascend to the top spot – Reid in 2005 and McConnell in 2007.


But their tenure has been marked by repeated reports of frosty relations – dating back to 2010 when Reid had a tough re-election campaign and felt McConnell helped too much in trying to defeat him. McConnell had the same gripe four years later, when he was in a tough contest of his own.


Shortly before the 2012 election, the two men gave their first joint interview to “60 Minutes.” Observers noted their cold body language during the discussion and CBS’s Steve Kroft later said the vibe was “chilly.” "They did not look at each other once during the course of the interview,” he said.


During their time at the top, the two have faced testy situations: the government shutdown in 2013 and a bitter fight over filibuster rules in the Senate, known as the “nuclear option.” That got so bad, a bipartisan group of senators intervened with their leaders to prevent what they called a “nuclear winter.”


“I think [Reid] has felt that the level of obstruction is unprecedented for a long time,” said a Democratic leadership aide. “This is the latest example and quite honestly the most extreme and unprecedented in modern history, but their obstruction on everyday nominations and pieces of legislation over the last seven years has also been unprecedented too.”


Republicans disagree, pointing to the significant number of bills the Senate was able to pass last year under the Republican majority despite a Democratic president.


It was 2 ½ years ago that Reid invoked the “nuclear option” to change Senate rules and eliminate filibusters for most presidential nominees (though not for Supreme Court nominees). Democrats argued that the change was about sidestepping Republican obstruction to get things done. For Republicans, however, it was a political move to stack a circuit court with liberal judges and an affront to the Senate.

McConnell at the time called the changing of the rules a “power grab” and a “sad day in the history of the Senate.” He said Reid would be remembered as the “worst leader” in Senate history.


One McConnell confidant said the nuclear option was viewed as a “slap in the face of the traditions of the Senate,” but added, “I don’t know that that has evidenced itself in impacting the personal dynamic” between the two leaders.


Jim Manley, a former top aide to Reid, said the Supreme Court issue is the “low point of an increasingly rocky relationship.”


“For years, they always managed to keep it relatively civil but as of a couple years ago, it’s become much more contentious,” he said.


Bates, the former chief of staff to McConnell, called both party leaders “part-statesmen and part-street fighters” and said the politics of the day have necessitated more of the latter. But he emphasized that for his former boss, it’s “never personal,” but about the institution of the Senate.


“The consequence of having two guys as leader who are street fighters is that after several rounds of hand-to-hand combat, it can make it a little tougher to find areas of cooperation, especially in the era where both sides are so polarized,” Bates said.


Both leaders, however, publicly pushed back against any negative characterization of their relationship. After Politico published a report in December saying the relationship had hit a “new low,” Reid and McConnell took to the Senate floor together to refute the story.


“I think there is a tendency that you can’t have political arguments without developing personal animosity,” McConnell said. “And I don’t have any toward my friend. I know he doesn’t have any toward me.”


The Final Battle?


With 10 months left in Reid’s three-decade Senate career, it’s not certain this will be the last major issue that separates him and his counterpart. In March of 2008, for example, few would have predicted the economic crisis that gripped Washington in the weeks leading up to the November election (and beyond). While the court opening is significant, there is plenty of opportunity for other legislative disagreement in the coming months.


“I’m not hoping for that to occur again, but we don’t know what issues are still out there,” said Penny Lee, a former aide to Reid. “… But this is one, obviously, that both are going to fight fervently about."

The Supreme Court vacancy “may not loom as large in the rearview mirror as it looks through the windshield,” said a McConnell confidant, “but it’s hard to make an argument that this isn’t an overarching issue for this year."


While it may not be the final stamp on Reid and McConnell’s decade running the Senate, it showcases the leadership both provide their caucuses, which has led to their nearly unanimous support among their fellow conference members.


“He gives a kickoff speech every day and so you know he’s focusing on it as a major issue and the caucus is fully supportive,” said Sen. Dick Durbin, D-Ill., the minority whip.


“It’s what leaders do,” Sen. Tom Tillis, R-N.C., a member of the Judiciary Committee. “When you get on something like this, where it’s going to attract a lot of attention from the media, it’s going to attract a lot of attention from interests on either side of the ideological spectrum, this is when leaders really need to step up and make the tough choices and that’s why I respect and admire Mitch for what he did."

When Reid decided a year ago to retire from the Senate, he made a promise to McConnell: “My friend Sen. McConnell, don’t be too elated. I’m going to be here for 22 months and you know what I’m going to be doing? The same thing I’ve done since I first came to the Senate,” he said in his retirement video.

So far, he’s lived up to it.




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