I have written a couple of posts about why Democrats are hypocrites for complaining about Republican senators’ plan not to hold hearings for any person President Obama might nominate to the Supreme Court in place of the late Antonin Scalia. That doesn’t mean the GOP has it right. In fact, the biggest losers from Republicans’ tactics here just might be conservatives.
It’s not just that their pre-emptive refusal to hold hearings has ceded the moral high ground to Obama, which Senate Majority Leader Mitch McConnell has done perhaps irreparably. Imagine, for instance, if McConnell’s initial statement had been: “We have a family who are grieving and a nation that is in mourning. We have lost a great American. There is a constitutional process for replacing Supreme Court justices, and I’m not going to say anything more about it until the appropriate time after Justice Scalia’s funeral — and neither should anyone else.” That would have flipped the current situation on its head completely, while retaining total flexibility for Senate Republicans.
In the days after the funeral, clips like this one of then-Senate Judiciary Chairman Joe Biden from 1992 would have emerged, putting the Obama administration further on the defensive. Then, at the time of their choosing, the senators could have had one from their number deliver a speech about how the court would be put out of balance if Scalia were not replaced by another conservative justice — and the fact that, unlike with Obama’s first two court nominees, the American people had now entrusted the confirmation process to a Republican-led Senate. The Senate’s duty, the speaker would have continued, is to ensure a lame-duck president does not try to throw the court out of balance on his way out the door. Senators would be happy to entertain the nomination of someone who would not lead to such an imbalance.
The onus then would have been on Obama to nominate someone in keeping with this theme of balance. An actually acceptable nominee would have been a coup. Any nominee who would have threatened the court’s balance would have received a proper hearing but ultimately would have been rejected. With Republicans harping on balance above all, they could have maintained the high ground, and leverage with Obama, throughout the process.
But from a conservative standpoint, that’s not the only, or even best, reason for taking a different tack than McConnell and Co. have taken. For the best reason, just look at the polls.
The GOP front-runner is Donald Trump, who famously named his pro-choice sister as a good model for his potential Supreme Court nominees (although, after Scalia’s death, Trump said there would be a “conflict of interest” there and instead offered the names of appeals court judges Bill Pryor and Diane Sykes). The question is whether conservatives, who have watched Trump flip-flop on issues from abortion to gun control, not to mention being on the wrong side of the Kelo eminent domain case, could trust him to make solid court picks. Personally, I don’t. The other presidential candidates still in the running would be more trustworthy on that score, but obviously they face longer odds of winning the GOP nomination. Of course, there’s also the very real possibility Hillary Clinton (or, increasingly less likely, Bernie Sanders) gets to make the choices instead. And the Senate could also flip back to the Democrats in November, particularly if Trump is atop the GOP ticket.
So the GOP has some actual leverage with Obama now. They are the gatekeepers if he wants one last chance at putting his imprint on the nation’s highest court. But they have no guarantees, nor even a strong likelihood, of being able to assure a conservative nominee next year. And by refusing to consider an Obama nominee now, they are giving Democrats — those perennial innovators when it comes to altering the confirmation process — all the ammunition they would need next year to filibuster a conservative nominee.
They don’t call Republicans the “stupid party” for nothing.