Would a Republican Senate Confirm a Clinton Supreme Court Replacement For Scalia? (SPOILER: No.)
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Republicans are not going to break with the consistent, longstanding practices of the McConnell era in order to shift the Court well to the left:
The messy scenario involves a President Hillary Clinton facing off against a Republican Senate. Many pundits assume that point-blank refusing to fill the vacant Supreme Court seat will be politically impossible for Republicans. These pundits are, however, probably wrong. Everything about the way Senate Republicans have operated under the leadership of Majority Leader Mitch McConnell suggests that keeping Scalia’s seat open is exactly what the GOP will do. The GOP’s drift from traditional norms of governance has only been exacerbated by Trump, who has stoked the anti-establishment sentiments roiling the Republican base and made it virtually impossible for Republican legislators to work with Democrats on anything.
Multiple Republican senators and public intellectuals have already come out in favor of a blockade. In some ways, the most instructive comments were made by Senator John McCain’s spokeswoman, after McCain openly declared that Senate Republicans “will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” Following up, McCain’s representative said that McCain would “thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications.”
While these comments have been described as a “walk-back,” if you look carefully they really weren’t. McCain’s office only said he would consider the qualifications of any Clinton nominee; it didn’t say there was any chance he would find any Clinton nominee “qualified.” Indeed, the underlying premise of the blockade is that the entire Democratic Party is unqualified to rule in any way. Responding to Slate writer Jamelle Bouie’s point that Republican Supreme Court obstructionism constitutes “[a]n explicit statement that Democratic presidents are inherently illegitimate,” the anti-Trump conservative Ross Douthat averred, “I think it’s more a statement that current liberal judicial theory is inherently illegitimate.”
On the merits, the idea that Republican objections to Hillary Clinton’s nominees are about “judicial theory” is laughable. To choose just one recent example, a Republican Supreme Court majority eviscerated the most important civil rights statute of the last century with arguments so feeble they scarcely merit being called “constitutional law” at all. The idea that Senate Republicans will only approve judges with a neutral commitment to “strict constructionism,” or whatever other meaningless cliché, doesn’t pass the smell test.
But as a prediction of what Senate Republicans will do, Douthat accurately characterizes the process by which Senate Republicans will convince themselves that they’re not merely permitted, but compelled to reject any of the “judicial activists” Clinton will nominate. What they really care about are substantive policy outcomes, not legal theory, but that doesn’t matter. As a justification, it’s good enough. McConnell’s Republicans have consistently ignored established norms to pursue partisan advantage, and this will be the latest example.
In outright refusing to consider Merrick Garland, the GOP has already obliterated previous norms regarding Supreme Court nominees. The original justification was that the Senate couldn’t do such a polarizing thing in the midst of an election, but the election itself has pushed the GOP to stake out even more extreme positions. The serial obstruction of Hillary Clinton’s nominees is now a virtual inevitability.
On the one hand, the stakes of filling the Supreme Court seat are huge. Even a moderate like Garland would be the most liberal median Supreme Court vote in nearly 50 years. On the other hand, all evidence suggests that the political costs of refusing to fill Scalia’s seat would be negligible. The obstruction of Garland has gotten virtually no attention during the presidential campaign. The general public pays very little attention to the Supreme Court. Legal scholars will fret that the Court won’t be able to efficiently resolve circuit splits, but virtually nobody will change their vote because of it. Republican senators have much more to worry about from primary voters who would be furious at any senator who voted to shift the Court well to the left than from a general electorate that will almost certainly ignore Republican obstructionism yet again.
The bipartisan Great Pumpkin is not coming. I think one problem here is the tendency of lawyers to assume that the general public cares about stuff that they care about. Obviously, nobody votes based on whether the Senate allows circuit splits to be resolved efficiently, and McConnell et al. have long known not to believe this kind of noble lie.