Editorial: Obstruction of Justice

As time goes on, it gets harder and harder to understand why Sen. Kelly Ayotte of New Hampshire appears determined to march in lockstep with most of her Republican colleagues over the precipice created by their refusal to consider President Obama’s Supreme Court nominee.

Over the weekend, Senate Majority Leader Mitch McConnell, R-Ky., asserted that the nominee, Judge Merrick B. Garland, would not be considered by the Senate even after the fall elections because of the principle at stake: that a newly elected president should make the choice. This new refusenik wrinkle was apparently occasioned by the comments of Orrin Hatch, a Republican from Utah and a member of the Judiciary Committee, who said that he would be open to holding hearings depending on the election results.

Leave aside for a moment the fact that there is no discernible principle at stake here that absolves the Senate of fulfilling its constitutional obligations during an election year, and that refusing to do so will poison the well for the consideration of future nominees, perhaps inflicting incalculable harm on both the Senate and the Supreme Court.

The practical outcome is that by backing his colleagues into a corner, McConnell is precluding the possibility that an extremely well-qualified and moderate nominee could win confirmation. That in turn raises the possibility, and maybe even the probability, that the next court appointment will be made by Donald Trump or Hillary Clinton, and that that nominee will be considered by a Senate in which Republicans no longer hold a majority. Do McConnell and his colleagues really think that it would be a better outcome for themselves or the country if a far more liberal nominee proposed by Clinton or a wild card put forward by Trump were to be confirmed?

It is even harder to imagine why Ayotte, facing what promises to be a tough re-election fight, would go along with a game plan that could derail and perhaps end her political career. One similarly situated Republican senator, Mark Kirk of Illinois, is not buying it. On Friday, he said that his fellow Republicans should “just man up and cast a vote.”

If Ayotte needs a Republican model closer to home in order to assert her independence from GOP group-think, she need look no further than to Sen. Susan Collins of neighboring Maine. Asked in an NPR interview last week whether Garland deserves a hearing and a vote by the Senate Judiciary Committee, Collins replied: “He does. I believe that we should follow the regular order in considering this nominee. The Constitution’s very clear that the president has every right to make this nomination, and then the Senate can either consent or withhold its consent. The only way that we can do that is by thoroughly vetting the nominee . . . . ”

If Ayotte needs still more political cover, she can point to such Republican luminaries as Kenneth Starr, the former special prosecutor in the Whitewater and Monica Lewinsky scandals, and Michael Chertoff, the Homeland Security secretary under President George W. Bush. Both have warmly praised Garland in recent days.

Finally, Chief Justice John Roberts, speaking just days before the death of Justice Antonin Scalia, expressed concerns about the politicization of the confirmation process, which, he understated, “is not functioning very well.”

With the Senate now in recess, Ayotte’s New Hampshire constituents have the opportunity to weigh in with her on Scalia’s successor. We urge them to take it.