Mitch McConnell made the rounds on the Sunday shows this week to reiterate: Republicans will not act on President Obama’s nominee to the Supreme Court — not now, not ever. They will not consider Merrick Garland before the election. They will not consider Merrick Garland after the election, in the lame duck. Only the next president can rightfully pick the next Supreme Court Justice, because otherwise, the people (who elected Obama twice, but never mind that) would not be having their say.
Right on cue comes a new Monmouth University poll that finds that only 16 percent of Americans buy this argument:
Do you think the Senate Republicans who say they will refuse to hold hearings on the nomination are doing this more to give the American people a voice in the process or more because they are playing politics?
Give American people a voice: 16
Playing politics: 77
The poll also finds a majority of Americans (53-43) thinks the “sitting president has the power to nominate Supreme Court justices and the Senate should consider those nominations even if they occur at the very end of a president’s term.” And 69 percent think that now that Obama has nominated Garland, the Senate should hold hearings on him.
Those numbers raise the possibility that the Republican position in this battle might not prove to be a particularly tenable one over time. And Democrats are making it clear that they will continue to hammer Republicans — particularly those vulnerable GOP incumbent Senators up for reelection in states carried by Obama — to act. So can the Republicans hold out?
One reason they may hold firm for a long time is that there is no particularly compelling political reason to act immediately. The Republican calculation is that this is a gamble worth taking. Even Garland (who is widely described as a “centrist”) would tilt the court in a more liberal direction, potentially dealing big setbacks to various conservative causes, so better to roll the dice and hope for a Republican president who will replace Antonin Scalia with another conservative justice.
Of course, if Donald Trump continues marching towards the nomination — and if a contested convention scenario takes shape in which the nominee would end up being Trump or Ted Cruz, who arguably would also give Dems a very good shot at winning this fall — then this gamble might start to look more risky, since it would raise the possibility of a President Hillary nominating a more liberal justice next year. But if that began looking more likely, Republicans could simply consider (or even confirm) Garland at that point if they so chose. So there’s no obvious percentage in acting now, when Republicans can wait to see how their nomination process shakes out first.
Indeed, Democrats involved in this battle see it as a kind of war of attrition, in which ground will have to be gained incrementally, little by little, with each gain making further gains on top of that one possible. Note, for instance, that a number of Republican Senators facing reelection, such as Rob Portman, Kelly Ayotte, and Mark Kirk, have now said under pressure that they will meet with Garland. These senators have also reiterated that they still won’t consider him, making the agreement to meet with him seem like an empty gesture at best. But this opens the door to more pressure later: Once the meetings take place, these Senators may then be pressed to explain what they heard in those meetings to justify not considering him, leading to another round of negative stories at home.
If these Senators start seeing polling coming back that shows their stance is hurting them, you could see them putting pressure on McConnell to relent.
Or consider what might happen if it becomes more apparent that Trump may win the nomination outright. That could make the Republican position less tenable — these Senators would in effect be saying that President Trump should be allowed to pick the next justice, but Obama shouldn’t. That would be consistent with their stated principle that the people should weigh in on this matter by picking the next president, but it might not be good politics — particularly if Trump maintains his soaring levels of unpopularity — and especially in states carried by Obama.
To be clear, it’s perfectly plausible that Republicans might not act on Garland at all through the election. Maybe this won’t really matter enough to voters to get vulnerable incumbents to buckle in a meaningful way. But you can also see a their position growing less tenable, slowly, over time. If Trump is looking like the nominee, Republicans would then be contemplating a situation in which their intransigence offers them only downsides, with no upsides: They appear more likely to lose the White House, potentially meaning a more liberal justice gets in later, rather than the conservative justice that Republicans had hoped to get by taking this whole gamble, and on top of that GOP Senate incumbents continue to take on water over this fight, for no apparent reward. Yes, holding firm would keep the base happy. But you’d think that at some point a line can be crossed beyond which even that is no longer worth it. You’d think, anyway.