Senate Republicans have only three choices for the next Supreme Court justice: Merrick Garland, a young liberal from Hillary Clinton, or God Knows Who from Donald Trump.
You’d think, given that Door #2 is quite likely, and Door #3 is a game of chance, that they’d give a closer look (or any look) to a 63-year-old moderate once praised by Orrin Hatch and Chief Justice John Roberts.
Senate Republican leaders, however, are placing their bets on Donald Trump. Despite the grave reservations some Republicans have expressed about his candidacy—Lindsey Graham is now raising money for Ted Cruz, for God’s sake—they seem oddly confident that Trump will faithfully nominate a Scalia-like replacement for the late Justice Scalia, and have thrown the constitution into the Russell Building’s fireplace in order to enable him to do so.
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This despite the fact that nothing Trump does is ever that predictable, and that the rumor mill’s favorite candidate for a Trump SCOTUS pick is his own sister, Third Circuit Court of Appeals Judge Maryanne Trump Barry, nominated for the district court by President Reagan and the appellate court by Bill Clinton. (Barry did testify in favor of confirming Justice Alito, burnishing her conservative credentials.)
Moreover, as Five Thirty Eight observed in its usual geeky detail, a Trump candidacy might well have a negative effect down the ballot, tilting the Senate to the Democrats. Then Hillary Clinton could nominate whomever she wanted. Based on current betting markets, Five Thirty Eight gave this a 40 percent chance of coming to pass.
So why, if the risks are so high, are Senate Republicans playing Russian Roulette with the Supreme Court? Simple. Because the leadership isn’t really that different from Trump after all.
First, the current strategy—in Trump’s own formulation, “Delay, Delay, Delay”—reeks of his anti-political extremist philosophy: damn the whole system, shut the doors, ban the Muslims, build the wall.
There’s no precedent for refusing, for nine months, to even hold a hearing on a Supreme Court nominee. Such disrespect for the constitution and tradition, in the name of an invented idea that the “people should decide” (more on that in a moment), makes no sense in the party of John McCain and pre-2016 Charles Grassley. It only makes sense in the party of Donald Trump.
Second, the Senate’s political calculation is as rash as Trump’s tweeting style. There seems to be no consideration given to what this scorched earth policy will mean once the shoe is on the other foot, and a Democratic Senate is asked to confirm Republican nominees. Does anyone expect that Democrats will somehow rise above partisanship after this oath-defying Republican obstructionism?
The Senate leadership’s rhetoric is also Trumpian in its delegitimization of President Obama. “Republicans think the people deserve a voice in this critical decision,” McConnell said on the Senate floor. “The president does not. So we disagree in this instance and as a result, we logically act as a check and balance.”
Well, that’s not true at all. Of course the president (and Senate Democrats) believes the people deserve a voice. In fact, the people spoke with that voice when they reelected President Obama in 2012, among other things entrusting him with four full years of filling judicial vacancies.
But to Trump, the Republican base, and now McConnell, Obama has no mandate to do anything. Even though “the people decided” quite clearly in 2012, nothing Obama does with that decision is legitimate. Not his use of executive authority, not his fulfillment of constitutional duties, and certainly not his Kenyan Muslim heritage—oh sorry, did I say that out loud?
Finally, the Senate’s obstructionism paints the same sorry contrast that Trump strikes when he stands near real politicians. Agree or disagree with their politics, but mainstream pols like John Kasich, Paul Ryan, and even Mitt Romney observe what President Obama called the “norms and customs of political rhetoric and courtesy and comity.” They have class. And standing next to them, Trump comes off as a boor.
Similarly, just compare Garland with McConnell. On the one side, a respected, centrist jurist who everyone admires for his intellect and perspicacity. On the other, someone playing politics with the constitution and pandering to his base.
Ironically, McConnell is himself viewed as an establishment hack by the Tea Party fringe, which nearly toppled him in a primary two years ago. But I suppose if you can’t beat ’em, join ’em.
Which, in the final analysis, is what this whole sad congressional moment means. Mainstream Republicans would never have gained power if it weren’t for the know-nothing nativist fringe that Trump now commands. Beginning with Nixon’s “Southern Strategy,” coopting George Wallace’s racism and winning over his followers, the modern GOP has made a deal with the devil: we’ll be just racist enough to win you over, and in exchange, you’ll ensure that our not-actually-racist foreign policy hawks and fiscal conservatives can rule the country.
In other words, as Jason Sudeikis’s Mitt Romney put it on SNL, “We don’t say racist and sexist things. We imply them, subtly, over decades.”
Well, now the lunatics are running the asylum, and their extremist views have captured the party itself. Rejectionism that was unthinkable a decade ago is now, somehow, the new normal.
There are Republican Senators who don’t want to carry water for Donald Trump (or Ted Cruz). So far, Senators Collins, Portman, Kirk, and Ayotte have agreed to at least meet with Judge Garland. There are cracks in the wall.
And faced with those three choices—Garland, Clinton’s pick, or Trump’s—one wonders what freelance senator Marco Rubio, or self-styled maverick McCain, might do, on closer reflection. Perhaps the better angels of our collective political nature will prevail—or if not them, then a bit of good judgment.
Failing that, there is even a compromise option, sort of: a lame-duck confirmation, which Hatch has endorsed. That would be nice gamesmanship by the Republicans: wait until the Trump option has expired, and then settle for Better-than-Door-#2. Yet it seems unlikely that Judge Garland would withdraw from the process (or Democrats would filibuster it) simply to prevent that from happening.
So maybe there’s a compromise ending for this compromise candidate, albeit an unseemly one. The Republicans can say “well, the people have spoken, and we’re going to listen,” feigning patriotism while practicing partisanship. Garland gets his seat. Everybody gets what they want. It’s a negotiation worthy of The Donald himself.
