The Hill reported yesterday that seven Republican senators are willing to meet with Merrick Garland, President Obama’s pick to replace the late Supreme Court Justice Antonin Scalia. Until then, Senate Republicans had presented a united front in refusing to consider anyone Obama brought forth. Some no doubt might think that this signals mediating circumstances to come. A crack in the facade, as it were, might foreshadow GOP acquiescence down the road.
That’s premature. Scalia’s death presented the GOP leadership with two bad options.
One, hold hearings and confirm a middle-of-the-road nominee like Garland on the merits, thus altering the political composition of the high court for years. Two, hold hearings and reject a middle-of-the-road nominee like Garland on the merits, thus sparking a tide that might put Hillary Clinton in the White House. Confirmation hearings take up so much media bandwidth that confirming or rejecting someone on the merits is bad all around. Senate Majority Leader Mitch McConnell isn’t stupid. His decision to reveal his hand within hours of Scalia’s death was rational and shrewd.
That may be just the beginning of the Republicans’ defensive plan. We may yet see how shrewd McConnell can be. The seven senators who signaled their willingness to meet with Garland are heading into tough fights in November. Before Scalia’s death, the Democrats were optimistic they could take a few Senate seats. After Scalia’s death, and after McConnell’s announcement that there would be no hearings for nominees, the Democrats are feeling greater optimism.
Indeed, that optimism comes in part because the Republicans have only one line of defense, literally one: that the American people ought to have a say in determining the next Supreme Court justice. As Newsweek’s Kurt Eichenwald noted, the Democrats have a far better response. He writes:
- the move is unprecedented;
- the people already had a voice when they re-elected Obama;
- presidents have had nominees confirmed in election years throughout American history;
- the Republicans are refusing to do their job;
- they are sacrificing government to politics;
- they are crippling the court through at least 2017;
- they are continuing their attempts to block Obama’s judicial selections with laughable excuses (such as when they fought to shrink the size of a major federal appeals court by suddenly declaring it was too big after a vacancy opened up);
- they sacrifice government to politics, and cannot be trusted.
This latest news suggests that the Republicans are hoping to minimize some of the fallout without expecting much in their favor in November. It may be a bit cold-blooded to say but losing the Senate isn’t worth as much as losing the Supreme Court. And it’s certainly not worth as much as losing the presidency. It’s not a small price, of course, but that may be the only price.
And even then it might not matter. Senator Jeff Flake and Orrin Hatch, who sit on the Senate Judicial Committee, said today that if the Republicans lose the White House, Senate Republicans would have to consider confirming Garland in a lame duck session of Congress.