In the opening moments of the final presidential debate, Donald Trump mouthed a sentence that was actually true: “The Supreme Court — it’s what it’s all about.”
He got that right. Because after he exits, Hillary Clinton will be positioned to craft a new court that will feature an appointive Democratic majority for the first time in nearly 50 years. That court, in the long run, will likely tilt more leftward — or at least that’s what Clinton promised in the final debate:
“The Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy … a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United.”
A high court with that kind of orientation is clearly a traumatic prospect for the besieged Republicans, who in recent decades have come to view the court as their pet bailiwick — but, hey, too bad for them. When you nominate a loser like Trump, you’d better be prepared to suffer the consequences.
And it’s a particularly tough time to be a Senate Republican. They’re trapped in the trunk of a car that’s being driven wildly to and fro by an unlicensed orange infant, and they have no way of knowing how many of them will still be breathing after the crash. And that crash is surely coming. The new ABC News-Washington Post poll, released yesterday, shows that Clinton has opened a 12-point lead — tripling the national lead she had in the same poll just 12 days ago. She’s not just pulling women in historic numbers; now she’s even ahead with men. (Heck, she’s only trailing by three points in Texas, of all places, and that’s within the margin of error. Obama lost Texas twice by double digits.)
Hence the GOP’s dilemma. The bloodier the car wreckage, the more likely Senate Republicans will lose the chamber. That nightmare scenario has sharpened their ongoing quandary about how or when or whether to advise and consent on high court nominees. The Supremes have been split 4-4 since Antonin Scalia died last winter, and Republicans are wrestling with the existential question: Should they do their jobs or not?
As best I can determine, there appear to be four somewhat contradictory camps:
1. After Trump loses, we gotta confirm Merrick Garland real fast!
Jeff Flake, the junior senator from Arizona, made that argument late last week. He said, “If Hillary Clinton is president-elect, we should move forward with hearings in the lame duck (the pre-Inauguration session). That’s what I’m encouraging my colleagues to do.” Flake and others fear that if they don’t move speedily on President Obama’s moderate nominee, who has been twisting in the wind since March (setting an all-time record for nominee limbo), Clinton will simply yank Garland and tap someone considerably to his left.
2. Nah, no way we’re ever gonna move on Garland, no matter what the elections results are!
That’s still the official Party of No position, as decreed by Senate leader Mitch McConnell and Judiciary Committee Chairman Charles Grassley, who have apparently come to believe, in a radical departure from tradition, that the Senate’s institutional duty to advise and consent is for wimps.
3. No way we’ll OK any Clinton nominee ever in the future!
So said John McCain, the senior senator from Arizona, early last week, signaling that Republicans should continue to do what they do best: Nothing. In McCain’s words, “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up. I promise you.” A spokeswoman later tried to walk that back, insisting that McCain will “thoroughly examine the record of any Supreme Court nominee,” blah blah, but make no mistake, the party’s stonewall impulse is alive and well.
4. Wait, we can’t simply reject any and all Clinton nominees in the future!
Grassley did some damage control for McCain the other day, telling reporters: “If that new president happens to be Hillary, we can’t just simply stonewall.” (This, from the same guy who won’t hold hearings on Garland.) But he’s right, they can’t simply stonewall. Team No has spent the last seven months insisting that “the American people,” via their votes, should have the last word on the court’s future. If indeed “the American people” vote decisively for Hillary, the stonewallers are duty bound to honor their own pledge.
Then we have the wild-card factors: Depending on the size of Clinton’s victory, and the composition of the new Senate, Obama could decide to cede the next pick to Clinton. He could withdraw Garland and let Clinton wage the fight with her own nominee in ’17. It wouldn’t be an easy fight even if Democrats take the Senate — because their sunniest scenario is probably 53 seats, seven shy of the tally needed to break a Republican filibuster — but if Chuck Schumer is the new leader, he could engineer new Senate rules requiring only a simple majority for all future nominees.
Granted, if Clinton takes the reins with a Democratic Senate, the party’s window of opportunity to reshape the court might be narrow, because a resurgent GOP could conceivably bounce back in the ’18 Senate midterm and retake the chamber. (Assuming, of course, that the GOP doesn’t sink into a civil war that pits the populist Trumpkin wing against the party establishment.)
But for the foreseeable future, with respect to the high court, Republicans are stuck playing a bad hand (assuming they can even agree on which bad hand to play) – which is precisely what happens when you’ve lost three straight presidential elections. The Latin term is victoribus spolia — “to the victor goes the spoils” — and if the election results go as expected, Clinton will have earned the right to give the court a long-term progressive tilt. There’s only so much the GOP can do to hold back history.