Now that President Obama has rolled out a Supreme Court nominee who is being widely described as a “centrist” who has “drawn praise from both parties,” some analysts are predicting that it may be harder for GOP senators to continue to refuse to consider him. But if anything, most signs are that Republicans are only digging in harder behind their stance that only the next president should pick Antonin Scalia’s replacement.
But there is a scenario worth entertaining here in which Obama has the last laugh — and the GOP posture ends up leaving Republicans with only downsides, and zero upsides.
That scenario goes like this: If Republicans don’t give Garland any hearing, and a Democrat (most likely Hillary Clinton) wins the presidential election, Republicans could then move to consider him in the lame duck session, to prevent Clinton from picking a more liberal nominee. But at that point, Obama could withdraw his nominee, to allow his successor to pick the next justice, instead.
The Republican argument for refusing to consider Garland (or anyone Obama nominates) is that the selection of the next justice is so hugely consequential that only the next president should make that choice, so that the American people have a say in it, by choosing who that president will be. Lurking behind this rationale is the understandable fear that if the court is tilted in a more liberal direction, it could deal a serious blow to a number of conservative causes — so better to roll the dice by holding out and hoping a Republican is elected president.
But with Donald Trump tightening his grip on the nomination, and the more electable “establishment” GOP candidates falling like dominoes, the prospect of Clinton winning the presidency is looking very real, and may continue to look even more likely as the campaign progresses. Republicans themselves fear that a Trump nomination could cost them the Senate, too. If all of that happens, Republicans might see no choice but to try to confirm Garland in the lame duck, before Clinton takes office and picks a nominee, possibly with a Dem-controlled Senate behind her. Some Republicans are already floating this idea.
But Obama could decline to play along with that scenario.
“Waiting until a lame duck session to decide whether to act is a high risk strategy, as Obama could always withdraw the nomination, giving a President Clinton the opportunity to swing for the fences,” Jonathan Adler, a libertarian-leaning law professor at Case Western Reserve University, tells me. Adler adds that Obama could simply justify this by arguing “that voters elected Hillary, that he gave Republicans a compromise offer, and they rejected it.”
The amusing thing about this outcome is that, in justifying the decision to allow Clinton to pick a more liberal nominee than he did, Obama would be offering a version of the rationale Republicans offered for not considering his pick at all: the voters have rendered a verdict on what Scalia’s replacement should look like, by picking the next president, and now we should honor that. And in this scenario, Republicans might end up with only downsides: they might end up sustaining a lot of political damage by refusing to act on Obama’s nominee at all, and they’d end up squandering the chance to get a more centrist justice, rather than a more liberal one. (They would have kept the base happy, of course, but at what price?)
Obviously Republicans might still stick to their current strategy, because — again — it’s worth taking a big gamble in hopes of electing a Republican president to keep the court tilted in a conservative direction. And who knows — maybe they’ll prove right, and the GOP will take the White House. But if it’s looking more likely that Clinton is going to win, and if more chatter about the above endgame arises, Republicans might feel more inclined to confirm Obama’s nominee before the election. As Adler puts it: “It would become a game of chicken.”
It occurs to me that perhaps I should argue that in this scenario, Democrats and liberals would be getting the last laugh, as opposed to Obama getting it. After all, Obama by all indications does want Garland confirmed; he’d merely be deferring to Clinton after the election.
(c) 2016, The Washington Post · Greg Sargent