Wednesday, March 16, 2016

Republicans would be foolish not to confirm Merrick Garland

In the wake of Justice Scalia's death, there has been a lot of debate about the ethics of Republican promises not to confirm any Obama SCOTUS nominee. Even though constitutional law is one of the few places in which I do strongly affiliate with the right over the left, I was deeply uncomfortable with the Republican strategy and its implications for the long-term politicization and legitimacy of the court even prior to today's announcement. But now that the nomination has been made, all those principled objections to the Republican strategy go out the window. From a purely strategic perspective, Republicans would be foolish not to confirm Merrick Garland.

Even if they win the presidency, Donald Trump neither knows much nor cares much about the constitution, and has so many authoritarian proposals that he would likely nominate a justice who thinks essentially everything is constitutional. That flies in the face of any recognizably conservative jurisprudence. And if Democrats win, the whole "let's let the voters decide!" stance the right has been taking will blow up in their face and let Clinton claim a "mandate" to pick the most liberal justice possible. The only way the next justice winds up being more conservative than Merrick Garland is if Cruz or Kasich win the general, but that has to be less than a 30% likelihood at this point. Considering blanket opposition to ANY Obama nominee was already an unprecedented gamble in the first place, at this point it only makes sense for Republicans to hedge their bets.

This is especially true because the left's majority likely won't last for long anyway. The three oldest justices on the court - Ginsburg (83), Kennedy (79) and Breyer (77) - are all Democratic leaning. Ginsburg is statistically unlikely to survive the next 8 years, let alone keep sharp enough mind to serve as Supreme Court Justice. If the Republican plan to keep the court was to go all in on the outcome of the 2016 presidential elections, they can confirm Garland and still reclaim the court (if they win) before the liberal majority has the opportunity to do much damage. And if they lose the elections, they already face the ominous prospect of all three of those justices retiring and being replaced by much younger left-leaning justices, ensuring a sturdy liberal foothold in the court for decades to come. They don't want to make that four vacancies, which is another reason why confirming Garland makes sense: at 63, he is already rather old for a nominee, and likely older than whoever Clinton would nominate instead.

Part of me suspects that Republican strategists not only understand this, but have always understood it. What if McConnell never had any intention of blocking the Obama nominee, but was using the threat of denial (made plausible due to his party's recent reputation for ideological intransigence) as leverage to get Obama to nominate a moderate? What if he tricked Obama into posturing himself for a long, drawn out fight McConnell knew would never happen, just to ensure Obama nominated a moderate? In that case, he will gladly allow Republicans to confirm Garland, and his allegedly irresponsible, obstinate partisanship is transformed into a masterpiece of political gamesmanship.

Time will tell.


  1. Kennedy is a Reagan appointee, as I'm sure you know.

    1. Ah! Good catch. I meant Democratic leaning in most of their decisions. I'll fix it now.