President Obama has frequently outfoxed the GOP — for instance, by beating them decisively in two national elections, the first Democrat since FDR to win successive popular vote majorities — and his fight to fully staff the Supreme Court already looks like a win-win.
In one scenario, Senate Republicans decide to face reality. They erase their Team No reputation by agreeing to conduct hearings on the nomination of Judge Merrick Garland; after all, the Constitution mandates that the Senate shall provide “advice and consent.” (Founding Fathers to GOP: Do your frickin’ job.) And facing reality would put them in sync with the mainstream; according to an early March national poll, 63 percent of Americans believe — 44 percent strongly — that the Senate should hold hearings and vote on a nominee. A new CNN/ORC poll says the Yes share is 66 percent.
But hey, we all know that the surrender scenario is far fetched. Team No’ers are quite adamant about their obstructionism, and if they did dare try to do their jobs, right-wing interest groups would mark them for extinction in the next round of GOP primaries. So the likeliest scenario is that they will hold Garland hostage for the next eight months — and, in the process, expose themselves to the general electorate as fools.
Rest assured, the White House has gamed out the scenarios, and Garland is fine with falling on his sword. In the end, the worst that can happen is that he gets to stay at the helm of the nation’s most prestigious appeals court, where his tenure has long been praised by both parties. And in the interim, between now and November, Team No can take Obama’s bait and wallow in its fatuous hypocrisy.
I recall that when President Ronald Reagan sought to fill a high court vacancy in his final year, he told the Senate: “We need a fully staffed Supreme Court. Every day that passes with a Supreme Court below full strength impairs the people’s business in that crucially important body.” Remember when Reagan said that? Remember how the Senate GOP — and Senate Democrats — dutifully agreed to do their jobs? Well, today’s GOP apparently does not.
And when Merrick Garland was tapped in ’97 to join the U.S. Court of Appeals for the D.C. Circuit, 32 Senate Republicans voted Yes, with just 23 saying No. Orrin Hatch, the Judiciary Committee chairman, said of Garland, “I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court.” It was the same vibe in 2010, when Garland’s name was first floated as a high court nominee. Curt Levey, a right-wing judicial activist, said that if Obama were to choose Garland, “you’ll have, if not a love fest, something close to it.”
Does today’s Senate GOP remember any of that? Apparently not.
The new Senate Republican mantra — actually, it got old weeks ago — is that a president in his eighth year shall not have the right to name a nominee. There’s no such provision in the Constitution, a document that Republicans profess to revere for its original literal language, which therefore leads one to suspect that they’ve summarily retooled its meaning because the president is Obama.
And that has led them to recite this hilarious mantra, on full display yesterday after Garland’s name was announced:
Senate Leader Mitch McConnell said, “The American people should have a say in the court’s direction.” Judiciary chairman Charles Grassley said, “The American people shouldn’t be denied a voice.” Orrin Hatch, forgetting his fulsome praise of Garland, said, “The right course of action is to wait until next year’s election.” David Vitter said, “The American people should decide through this year’s election.” John Cornyn said, “The American people deserve to have a say.” Kelly Ayotte said, “The American people deserve to have a voice.” And so on.
First of all, “the American people” have already told pollsters that these senators need to do what they’re being paid to do. Second, “the American people” already had their say when they twice elected Obama to the presidency — just like they had their say when they twice elected Reagan (whose nominee, Anthony Kennedy, was confirmed in his final year). Third, if the Founding Fathers had wanted to place a court nomination in the hands of “the American people,” they would’ve said so in the Constitution. Instead, they gave that job to the Senate — whose members were originally so insulated from “the American people” that they were chosen by legislatures, not voters.
Best of all is the Republican claim that Obama, by tapping a nominee, is “politicizing” the process — this, from the same people who want “the American people” to decide the issue during the presidential campaign. Do they not see the absurdity of their illogic? If you truly want to “politicize” something, you dump it into a presidential campaign. And they have somehow forgotten that long before Obama named Garland, the Republican National Committee was marketing the obstruction tactic as a fundraising tool.
Whatever. These people will always stay in character. But Obama has already boxed them in. He’s essentially giving them a menu of unpalatable choices:
Stonewall Garland for the next eight months — and risk alienating the swing voters who are crucial to the re-election prospects of five blue-state Republicans (including Pennsylvania’s Pat Toomey).
Lose the presidential race and perhaps the Senate (both are possible), and grudgingly agree to confirm Garland during a lame-duck post-election session.
Lose the presidential race and perhaps the Senate, and still refuse to confirm Garland — which would allow Hillary Clinton to tap a more liberal nominee in 2017.
Win the presidential race, keep the Senate — and take a flyer that Donald Trump would name a Scalia-style conservative. Problem is, Republicans have no idea what Trump truly believes, if anything.
If they were smart — insert joke here — they would take the current deal and confirm Garland. As conservative commentator William Kristol said on the eve of Obama’s announcement, “I think Merrick Garland would put [Republicans] in the toughest spot because he is highly respected.”
Advantage Obama. Again.