Murkowski: Obama's Supreme Court nominee should get a Senate hearing

Whomever President Barack Obama nominates to replace U.S. Supreme Court Justice Antonin Scalia, Alaska Sen. Lisa Murkowski thinks the nominee deserves to be vetted by the Senate.

The position may put her at odds with her party's leadership, but for some hedging: She noted that a hearing doesn't necessarily mean the Senate will vote to approve a nominee.

"I do believe that the nominee should get a hearing," Murkowski told reporters Wednesday at a question-and-answer session in Juneau, which followed an annual speech to the state Legislature. "That doesn't necessarily mean that that ends up in a vote. The purpose of the hearing is to determine whether or not this individual, based on their record … should be named to the highest court in the land."

Murkowski's opinion on the matter conflicts with Senate Majority Leader Mitch McConnell, R-Ky., and many others in the party. Soon after it was announced Scalia had died, McConnell asserted the president should not be able to appoint a new justice during his last year in office. "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President," McConnell said in a statement.

Moderate Republican Sens. Mark Kirk of Illinois and Susan Collins of Maine have similarly been hesitant to join the party-line, calling for restraint, though not necessarily confirmation hearings. On Monday Kirk released a statement calling the political squabbling "unseemly" and saying lawmakers should "take the time to honor (Scalia's) life before the inevitable debate erupts."

But Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, who, like Murkowski, is up for re-election this year, isn't ruling anything out.

Grassley told Iowa reporters Tuesday, "I would wait until the nominee is made before I would make any decisions" about holding a confirmation hearing, he said.


That statement softened the stance Grassley took Saturday, when he said, "It's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year." Instead, the Senate should "defer to the American people who will elect a new president to select the next Supreme Court justice," Grassley said.

Grassley's statement was criticized by some who noted it was contrary to a position he took in 2008, when some Democrats angled to stop confirming judicial nominees in the last few months of President George W. Bush's second term.

Murkowski asserted that Grassley "does intend to conduct hearings" on the eventual nominee to replace Scalia. Murkowski also conformed with the party-line by arguing it has been 80 years since the Senate acted on a Supreme Court nominee in a presidential election year.

That fact has been disputed -- though it is a matter of semantics: On Nov. 30, 1987, President Ronald Reagan, a Republican, nominated Justice Anthony Kennedy. A Democratic-controlled Senate confirmed Kennedy Feb. 3, 1988, by a vote of 97-0. Kennedy was not nominated in an election year, but he was confirmed during Reagan's last year in office -- a presidential election year.

Margaret Stock, an Anchorage attorney who is challenging Murkowski this year as an independent, said she thinks the fight over the as-yet-named Supreme Court nominee is "an example of why partisan politics aren't working."

"It's obviously necessary to replace a justice on the Supreme Court," because the panel can't do its business as intended with only eight justices, Stock said. The president has a constitutional duty to nominate a replacement and the Senate to vote on it, "until he gets somebody in the position," Stock said.

If Obama is successful in choosing a nominee who makes it through the Senate confirmation process this year, the nominee is unlikely to please conservatives as much as Scalia.

Scalia, appointed by Reagan in 1986, was known as a conservative and sharp-tongued, intellectual heavyweight on the court. His approach to the law is often called "originalist" and "textualist;" he strictly adhered to the meaning of the words in the U.S. Constitution as they were meant by those who wrote it, and he sought to identify the plain meaning of laws and statutes as they were written.

In January, Scalia was a predictable critic of the government's position in an Alaska-centric case about water rights.

How the court may rule in his absence is unclear. If the court comes to a 4-4 tie, the lower court ruling for the National Park Service and against a moose hunter in a hovercraft will stand.

"It's probably not a good thing" for petitioner John Sturgeon, an Alaskan fighting the agency over his hovercraft use in the Yukon-Charley Rivers National Preserve, said Damien Schiff, an attorney with the property rights firm Pacific Legal Foundation.

It doesn't necessarily mean an adverse ruling for Sturgeon, Schiff said. But it "probably makes it less likely rather than more likely," Schiff said.

The Supreme Court is set to hear another case on March 30 regarding water rights, in which the state of Alaska is expected to become involved. The case, U.S. Army Corps of Engineers v. Hawkes Co. Inc., questions the rights of private citizens to appeal decisions about property subject to Clean Water Act permitting requirements.

Scalia was known over the years for his opinions on Clean Water Act cases, which garnered increased interest from the court over the last decade.

Given Scalia's "strong interest in a limited government," it is likely he had a strong interest in the Clean Water Act, an area "where private property interests and government interests collide," said Lowell Rothschild, a Washington, D.C., attorney at Bracewell LLP who focuses on environmental and natural resource law.

"I think it's very clear that Justice Scalia was one of the more vocal objectors, so to speak, to the recent expansion of federal environmental authority," Schiff said. "His departure from the court does have an impact on" such issues, "because he was such a skeptical reviewer of agency action, especially under the Clean Water Act, and also the Clean Air Act."

Reporter Erica Martinson reported from Washington, D.C., and Nathaniel Herz reported from Juneau.

Erica Martinson

Erica Martinson is Alaska Dispatch News' Washington, DC reporter, and she covers the legislation, regulation and litigation that impact the Last Frontier.  Erica came to ADN after years as a reporter covering energy at POLITICO. Before that, she covered environmental policy at a DC trade publication and worked at several New York dailies.