President Obama’s nomination of federal appeals court Judge Merrick Garland for the Supreme Court led some pundits to declare that Republicans would be hard-pressed to oppose him. After all, Garland is seen as a moderate and exceptionally sharp, and his near 20-year tenure on the Court of Appeals for the District of Columbia Circuit provided particularly good training for the work he’d see on the high court.
As my colleagues David Savage and Del Quentin Wilber put it, Garland “can claim to be the American jurist most qualified to move up to the Supreme Court.”
But as Republicans and conservative groups made abundantly clear within minutes of the announcement, the issue isn’t who got nominated. It’s who did the nominating.
“Nominee Makes No Difference,” as the Concerned Women for America put it succinctly in the headline of its news release Wednesday morning. “This nomination will upset the balance of the Supreme Court to the radical left for many decades. Such a seismic shift in the highest court of the land must be presented to the people,” said Penny Nance, the group’s president.
If Republicans allow Garland to be confirmed, their core constituencies are likely to feel betrayed regardless of how reasonable and non-ideological the judge may be.
Granted, when you’re standing where Nance is standing, anyone to the left of John Kasich looks radical. But the polarization around this issue could put Republican senators in a no-win position.
The seat is open because one of the most conservative jurists on the bench, Antonin Scalia, died unexpectedly last month. That leaves the court equally split between conservatives named by Republican presidents and liberals named by Democratic ones. The fear is that anyone Obama names will be more likely to side with the liberals on such issues as abortion and governmental power.
That’s an entirely reasonable assumption, even though jurists have been known to shift right or left after rising to the bench (see, for example, Anthony M. Kennedy on gay rights). Ever since Ronald Reagan nominated Robert Bork, a well-qualified but divisive conservative jurist, lawmakers and their constituents have come to see nominees almost as instruments of partisan policymaking. That view has been reinforced by confirmation hearings that focus on ideological issues (e.g., abortion) and caricatures of judicial philosophies (e.g., is the judge an activist?), rather than exploring a nominee’s experience, breadth of legal knowledge and decision-making style.
That will be even more true if both parties’ tickets are led by baggage-laden presidential nominees, as appears all but guaranteed. Republican conservatives and Democratic liberals may all be tempted to stay home in November rather than vote for Donald Trump or Hillary Clinton, who were not their choices.
Yet there’s a risk on the other side too, which is why this appears to be a no-win situation for the GOP. If Garland winds up looking like a stellar jurist and an eminently reasonable choice, voters in the political center -- yes, they exist -- could see the Senate GOP as stubbornly obstructionist. That’s certainly the picture Democrats will be painting. And unless conservatives find a way to alter that picture, the refusal to act on Garland could spell trouble for swing-state Republicans up for reelection, whose fate will determine which party controls the Senate in 2017.
Of course, the politics are completely scrambled this year. Trump has benefited most among Republicans from voter anger at Washington’s dysfunction, and he’s on the record as opposing Senate action on Garland.
It can’t be fun to be Garland in this situation, knowing that you’re going to become a target even though there’s zero chance your nomination will get a vote before the election. At least he can hold onto the hope that a Democrat will win the presidency in November, at which point Republicans may rush to confirm him before the next president nominates someone who really is radical.
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