It has been over eight months since US Supreme Court Justice Antonin Scalia died, leaving a vacancy on the nine-person bench. And though the official Republican position is to block any nomination by Democratic Pres. Barack Obama to fill the Court’s seat, Sen. Jeff Flake, a Republican from Arizona, may be breaking ranks.
“The American people should have a voice in the selection of their next Supreme Court Justice,” Senate Majority Leader Mitch McConnell announced in February, notes Politico. “Therefore, this vacancy should not be filled until we have a new president.”
But McConnell’s gamble was made long before the outcome of the 2016 presidential election leaned heavily in Democrat Hillary Clinton’s favor.
"I said if [the GOP] were in a position like we were in in '96 and we pretty much knew the outcome [of the election,] that we ought to move forward," Sen. Flake said, on Oct. 20, predicting a GOP loss in the upcoming election. "But I think we passed that awhile ago. If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That's what I'm encouraging my colleagues to do."
"I'm saying that I'm not one to deny polls, particularly when they are overwhelming," Flake added, alluding to Clinton’s growing lead in state and national polls.
Pres. Obama’s Supreme Court nominee, Judge Merrick Garland, has been held in limbo for months as the Senate blocks his nomination.
Should Clinton win, however, Garland’s nomination is not certain to hold.
According to NBC News, Democratic vice presidential nominee Tim Kaine told “Meet The Press” in August:
This will be for the president and the president-elect to decide. But look, if it comes up for a vote in the Senate, Merrick Garland gets so far over the hurdle of the fitness and character test that is supposed to be the legitimate question for nominees, of course I'd vote for him. …
You know, I think the Dems may well take the Senate. In fact, I think we're going to. But it will be the Republican majority that will be running the floor until the next Senate comes in place. I have no idea whether they will allow the nomination to be taken up. They pledged that they won't. But if it does, I'm going to vote for him.
And beyond Scalia’s vacancy, the next president may have several more potential picks.
“There are three [Supreme Court] Justices who are either 80, or approaching 80-years-old,” Domenico Montanaro, political editor for NPR, said on the Oct. 20 episode of the NPR Politics Podcast. “That potentially means that a first term president Clinton, or Trump, could have the opportunity to appoint as many as three Justices.”