Illinois Sen. Mark Kirk, holder of the Senate seat generally characterized as the most likely to change hands among incumbent Republican senators standing for re-election in 2016, is trying to straddle the election year Supreme Court nomination issue. The Tribune reports:
The death of U.S. Supreme Court Justice Antonin Scalia has created a new and unsettling issue for Illinois Sen. Mark Kirk, perhaps the most vulnerable of Republican senators seeking re-election this year.
Kirk is offering no clue on whether he will side with leading Republicans, who have termed a final-year appointment by President Barack Obama a nonstarter, or with Obama and Democrats who say an appointment should be considered, regardless of the presidential election year.
Contacted by the Tribune, Kirk’s campaign pointed to a statement the senator issued Monday that avoided taking a stand on the question of Scalia’s successor and described the political maneuvering as “unseemly” at this time.
Kirk’s statement called Scalia a “giant in the history of American jurisprudence” and said the public should “take the time to honor his life before the inevitable debate erupts.”
All three of the Democrats competing to replace him are pressing hard for him to take a stand on the question one way or another.
“Sen. Mark Kirk must immediately level with the people of Illinois and let us know whether he supports the Constitution, or if he’ll be a rubber stamp for (Senate Republican leader) Mitch McConnell’s obstructionist and unconstitutional gambit,” Duckworth said.
Duckworth said taking the congressional oath of office “does not cease to apply in an election year, nor does it cease to exist for the benefit of a political party that lost the last presidential election and wishes to impose a procedural do-over.”
Sun-Times columnist Lynn Sweet seems to think that the controversy will somehow work to Kirk’s advantage:
WASHINGTON — I don’t see Sen. Mark Kirk, R-Ill., who is facing a tough re-election battle, sweating over the red-hot politics following the death of Supreme Court Justice Antonin Scalia.
Kirk won’t be moved to show his hand at least until after Scalia is buried. There are even ways he can use the battle over filling the Scalia vacancy to his advantage.
[…]
Now, what’s likely ahead for Kirk:
He implicitly took a shot at McConnell when he declined to close ranks with him when Kirk said in a statement: “The political debate erupting about prospective nominees to fill the vacancy is unseemly. Let us take the time to honor his life before the inevitable debate erupts.â€
McConnell did Kirk — who has to run in Obama’s adopted home state, where he is popular — no favor by taking the extreme position that Obama should not appoint a nominee. That’s process over substance.
Looking ahead to November, when he will be wooing independent and swing Democratic voters, Kirk would be guilty of political malpractice if he said Obama should not at least send a name to the Senate.
On Tuesday, Obama reaffirmed at a press conference that he would nominate, “in due time, a very well-qualified candidate.†Obama said Republican senators will be “under a lot of pressure†as he asked them to “rise above day to day politics.â€
Kirk’s primary opponent, Oswego software consultant Jim Marter, is running to Kirk’s right. Marter’s backers already have a long list of beefs with Kirk, so what he does on Scalia won’t change anything.
So in time, Kirk will likely say Obama is entitled to a nominee who deserves a hearing and a vote. Kirk’s past helps in forecasting his future on Scalia. When he was running for his first Senate term in 2010, Kirk said if he were in the Senate he would vote to confirm Elena Kagan to the Supreme Court. That would have made him a GOP outlier. Kagan was confirmed on a 63-27 vote, with only five Republicans voting yes.
I think that what’s going to work to Kirk’s advantage is that the bigwigs in the Illinois Democratic Party are backing a candidate without much name recognition against the more independent-minded Tammy Duckworth, a female Asian-American disabled veteran. For his part Sen. Kirk seems to be echoing Marshall Foch in his attitude towards his perspective Democratic opponents (“My centre is giving way, my right is retreating, situation excellent, I am attacking.”)
Exactly what about McConnell’s plan is unconstitutional? The Senate has a role to play in this, and if this is the direction they want to go, fine. They’ll pay, or be rewarded, at the ballot box.
And didn’t Obama filibuster one of W’s nominees? McConnell would be doing the same basic thing, but with a different procedural approach. Sauce for the goose….
Describing it as “unconstitutional” is hyperventilating. The president has the constitutional authority to appoint a replacement justice, the Senate has the constitutional authority of accepting or rejecting nominees. Beyond that is posturing.
And what should be done is another question altogether.
McConnell is a spineless weasel. When Andrew Johnson nominated Henry Stanbery to fill a vacant seat on the SCOTUS, Congress responded by eliminating the seat. Same for Obama, he should give a recess appointment to Caitlyn Jenner if the Republicans won’t move on a permanent replacement.
Kirk’s problem is that I doubt many Illinoisans know who he is or what he’s done. His stroke kept him sidelined for quite some time.
Does the President have the power to make a recess appointment to SCOTUS? If so, what’s to prevent a President from always appointing a new Justice when the Senate is away? He could even coordinate with Justices that wish to retire.
And what should be done is another question altogether.
What’s that got to do with anything? This President is going to go out of his way to pick someone that is a far left “diversity” Justice, which he probably shouldn’t do. But he can and he will. (In my betting pool, I’m putting a fiver on a male-to-female transsexual lesbian who’s half Australian Aboriginal and half Basque, and who has stated that all her decisions will be made after consulting Mao’s Little Red Book. I don’t know her name, but I’m sure she’s out there!)
We’re so far removed from “should” that I can’t believe anyone even uses the word anymore.
@Ellipses: Yes the POTUS can make recess appointments — Washington was the first and Eisenhower the last to make one to the SCOTUS.
Obama ruled out making a recess appointment a couple of days ago.