Feb 18, 2016 4 min read

ALLENTOWN – Republican U.S. Sen. Pat Toomey of Pennsylvania held firm to his view that the next president should fill the U.S. Supreme Court’s vacancy, and he said Thursday that it’s very unlikely he or a Senate majority would support President Barack Obama’s nominee.

He also said it might be better to not hold election-year confirmation hearings because senators would be weighing more than just a nominee’s qualifications. He and other Republicans would also consider how a nominee from the Democratic president would change the court’s balance in his favor before a new president takes office, Toomey said.

“It’s very unlikely that any nominee, however well qualified, could reach the level that would be necessary to satisfy both sets of criteria,” Toomey said. “And for that reason, it might be just as well not to have a hearing that would, sort of, might mislead the American people into thinking that this is just about the qualifications of the candidate, because it’s bigger than that.”

Toomey, who is running for a second term in the swing-state seat, backed Senate GOP Majority Leader Mitch McCon- nell earlier this week in arguing that a nominee for Justice Antonin Scalia’s seat is best left to the next president. That stance has brought a barrage of criticism from Democrats and Pennsylvania newspaper editorial boards. One Democrat running for the party’s Senate nomination, Joe Sestak, accused Toomey on Thursday of “marching lockstep with partisan obstructionists in Washington, D.C.”

The Scranton Times-Tribune editorial board called Toomey’s position “naked obstruction.”

Toomey reiterated his stance Thursday.

“I think the question before us now is … should the outgoing president fundamentally change the balance of the court for the next one or two generations?” Toomey said.

“I don’t think that’s reasonable. I think that it’s more reasonable for the American people to have a more direct say in that process, which they will do through the election of the president knowing now with certainty that the next president is going to make this really important pick.”

If an Obama nominee comes to a vote, Toomey would oppose the nominee, he said, barring an unlikely Obama decision to nominate someone in Scalia’s philosophical mold who would not change the court’s balance. One fear, Toomey said, is that the court with a new Obama nominee might become less willing to block Obama from exceeding his legal or constitutional authority.

“The president intends to change the balance of the court and I am not going to support him changing the balance of the court with nine months before an election, I’m not going to do that,” Toomey said.

Toomey would not say whether he would apply the same election-year logic in a hypothetical situation where a Republican president sought to fill a vacancy or Obama sought to replace a liberal justice. He said he would address each situation as it arises, but, he said, “this one I think is very clear.”

Should an Obama nominee fail in the Senate, the court would operate with just eight members at least until the next president takes office in January and puts forward a nominee. Toomey said he was not particularly concerned about the court operating with a vacancy in the meantime.

“It’s not that big a deal,” Toomey said.

The vast majority of high court decisions do not require a tie-breaking ninth vote and the court will make only a few decisions the rest of the year, Toomey said. Plus, an evenly divided court simply means a lower court decision stands in a case and a nine-justice court can always choose to revisit the matter in 2017, he said.