The Senate's second-ranking Republican left open the possibility of a confirmation hearing for President Barack Obama's nominee to fill the vacancy on the Supreme court.
In a radio interview on Wednesday, Texas Sen. John Cornyn did not rule out Judiciary Committee hearings while also saying he agreed with Senate Majority Leader Mitch McConnell, R-Ky., that the selection of a replacement for the late Justice Antonin Scalia should rest with the next president.
"It's entirely up to the chairman of the Judiciary Committee whether even to schedule a hearing on the president's nomination," Cornyn said on "The Mark Davis Show," a talk show on Dallas-area radio station KSKY. "And were the nomination to get out of the Judiciary Committee, it's entirely within the control and discretion of the Senate majority leader, Sen. Mitch McConnell, whether to schedule it for a vote. Which does demonstrate that majorities do matter."
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Later in the day, Nevada Sen. Dean Heller became the first Republican senator to break with his party's leader and say the president should nominate a replacement for Scalia.
Obama has challenged Republicans to live up to their avowed adherence to the Constitution and agree to vote on his nominee.
Despite widespread GOP insistence that he leave the decision to the next president, Obama said Tuesday he had no intention of abdicating his responsibilities before leaving office early next year. He chidingly told the Senate he expects "them to do their job as well."
"The Constitution is pretty clear about what's supposed to happen now," Obama said before returning to Washington from California.
McConnell has said he doesn't think Obama should put a candidate forward. The Kentucky senator joined several Republicans up for re-election in declaring that Obama should let voters in November weigh in on the direction of the court through their vote for president.
Obama rejected that notion, insisting he will put forward a replacement and believes the Senate will have "plenty of time" to give the nominee a fair hearing and a vote. Democrats say Obama has every right and a constitutional duty to fill vacancies on the court until he leaves office next January.
The pace of judicial confirmations always slows in presidential election years, thanks to reluctance by the party out of power in the White House to give lifetime tenure to their opponents' picks. In the past, lawmakers have sometimes informally agreed to halt hearings on lower court nominations during campaign season. But Obama argued that "the Supreme Court's different."
McConnell has shown no signs of shifting his opposition, and several lawmakers facing heated elections have backed him up. But the party may still be searching for a strategy.
Senate Judiciary Chairman Charles Grassley, R-Iowa, said he would wait "until the nominee is made before I would make any decision" about holding hearings.
Cornyn said the presidential election should be a referendum "on who makes that appointment because I think many people simply feel like they don't recognize their country anymore."
He added, "It's entirely up to the Senate whether to confirm that nomination, and I think we should not, and we should defer that to the next president."
If Republicans indicate they may hold hearings, Obama would have greater reason to name a "consensus candidate," a moderate nominee that Republicans would be hard-pressed to reject. If there's virtually no chance of Republicans bending, Obama might pick a nominee who galvanizes Democratic support and fires up interest groups in the election year.
Obama would not tip his hand — much. He said he'd pick someone that would pass muster for honor and integrity even among ideological opponents.
He would not comment on whether he would consider appointing a candidate during a congressional recess, a last-ditch maneuver that would inflame partisanship in Congress.
If Senate Republicans hold fast to their vow not to confirm anyone Obama nominates, the Supreme Court will operate with eight justices — not just for the rest of this court term, but for most of the next one as well. High court terms begin in October, and the 80 or so cases argued in the course of a term usually are decided by early summer.
The court would be unable to issue rulings on any issue in which the justices split 4-4.