Post-Scalia politics: Senate Republicans are captives of the rabid right

This past weekend, we briefly wondered what Senator Pat Toomey would say about the vacant Supreme Court seat. Would he indulge President Obama’s impending nominee, or not? What a clifffhanger!

The Republican freshman is up for re-election in Pennsylvania this fall, in a presidential election year that’s likely to spark a huge Democratic turnout, in a blue state that has voted Democratic in every presidential election since 1992. Toomey barely won his ’10 race, at the apogee of tea-party mania. This fall, he can ill afford to alienate persuadable moderates and independents. He’ll need as may as he can get.

Hence the dilemma: If he sided with Mitch McConnell and his Republican pals, and declared that any Obama court nominee was toxic by definition and therefore unworthy of consideration, if in essence he endorsed dysfunction, he’d risk alienating those autumn swing voters. But, on the other hand, if he endorsed sanity by considering an Obama nominee on the merits, if in essence he vowed to do his job as clearly mandated by the Constitution, rabid right-wing heads would detonate and The Base would terminate him with extreme prejudice.

So much for that cliffhanger. As if we didn’t know what Toomey would do.

On Monday, sure enough, Toomey declared his fealty to the zealots: “The next court appointment should be made by the newly elected president.” That way, the next nominee would have “a broad public stamp of approval,” and Toomey, presumably re-elected, would then “take the same objective, nonpartisan approach to that nominee as I have always done.”

There’s tons of fatuous trickery in that statement. (Big surprise.) A strict Scalia-style reading of the Constitution makes it abundantly clear that a sitting president has the duty to nominate, and the Senate has the duty to advise and consent. And I guess Toomey no longer believes in the gospel of Ronald Reagan, who, while seeking to fill a high court vacancy in his final year, stated the obvious: “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.”

Actually, five Republican senators are up for re-election this year in blue-leaning states that twice voted for Obama – Toomey in Pennsylvania, Kelly Ayotte in New Hampshire, Ron Johnson in Wisconsin,  Rob Portman in Ohio, Mark Kirk in Illinois – and on paper you’d think that this quintet would not want to risk defeat by defying their constitutional duty. Because dissing a well-qualified Obama nominee might sour swing voters (who hate dysfunction) and galvanize Democratic voters (who hate Obama hatred).

But no. Nothing is stronger than the right-wing undertow.

That’s how the game is played these days. What Republican incumbents fear most is blowback from the conservative pressure groups – FreedomWorks, Heritage Action, there’s a long list. They know that if they say anything civil and responsible (such as, let’s consider an Obama nominee on the merits, as mandated by the Constitution), they risk being primaried by a more conservative challenger. Better to just remain silent (Kirk), or knuckle under (Toomey).

Actually, Toomey has lots of company. Fellow incumbents on the ’16 ballot are echoing leader Mitch McConnell, who said: “This vacancy should not be filled until we have a new president.” Wisconsin’s Ron Johnson said Sunday that the American people should let the next president pick the nominee. Ohio’s Rob Portman said Monday: “With the election less than nine months away, I believe the best thing for the country is to trust the American people to weigh in.” New Hampshire’s Kelly Ayotte said Monday: “We’re in the midst of a consequential presidential election year, and Americans deserve an opportunity to weigh in.” (Clearly, the talking point authors were big on the verb weigh in.)

Granted, a few Republican senators seem willing to do their jobs. Susan Collins of Maine emailed the press: “Nominees to the Supreme Court warrant in-depth consideration….Our role in the Senate is to evaluate the nominee’s temperament, intellect, experience, integrity and respect for the Constitution and the rule of law.” Thom Tillis of North Carolina said something similar. But Tillis and Collins aren’t running for re-election this year. Tillis doesn’t have to worry about a right-wing primary challenger until 2020.

The big question is why the vulnerable ’16 Republican quintet have bowed so disgracefully to The Base. The answer is simple: They think that the price they’d pay from The Base for indulging an Obama nominee would be higher than the price they’d pay from swing voters for stiffing an Obama nominee. They think that right-wingers care more passionately about the court issue than anybody else does.

It’s a risky political calculation, subject to revision depending on who Obama nominates. It’s just a shame that they refuse to follow the Consitution. A twice-elected president has the right to nominate the qualified person of his choice – and this sage passage, in a 1970 law review article, goes even further:

The President is presumably elected by the people to carry out a program, and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform.

So wrote the Kentucky law student, Mitch McConnell.

Follow me on Twitter, @dickpolman1, and on Facebook.