Within hours of Supreme Court Justice Antonin Scalia’s death over the weekend, Senate Majority Leader Mitch McConnell drew a line in the sand: No new justice would be confirmed until after the presidential election.
“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell (R-Ky.) said in a statement. “Therefore, this vacancy should not be filled until we have a new president.”
The reason for McConnell’s hard line isn’t tough to figure out. It’s the same reason everyone from Ted Cruz to Jeb Bush in the Republican presidential race called for the postponement of any nomination until a new president is elected in November: It’s what the GOP base wants.
The Republican base felt very strongly about the importance of judicial nominations before these past few years. But the Supreme Court rulings legalizing same-sex marriage and upholding the Affordable Care Act have convinced conservatives that the court is out of control and needs to be reined in by a Republican president committed to core principles.
Given that view, it would be political death for a Republican presidential candidate to advocate that President Obama be given the right to make a pick — and that pick be given a full and fair hearing in front of the Senate. Ditto McConnell, who is regarded as “too establishment” by some tea party types looking to make trouble for him in the Senate.
So I get why McConnell said what he said. I just think the way he went about it was a mistake — especially for a party desperately in need of proving to the public that it can be more than the anti-Obama/pro-Donald Trump party.
Saying publicly — and on the same day that Scalia died — that replacing the justice was a non-starter, Senate Republicans sent a clear message to the American voters: We aren’t even going to make a show of playing ball on this one.
This exchange between “Meet the Press” host Chuck Todd and Cruz on Sunday is telling on that point.
TODD: Okay, I understand that. But why not go through the process? Shouldn’t the United States Senate do its duty and go through the process? Reject it, Senator, but go through the process.
TED CRUZ: By the way, the Senate’s duty is to advise and consent. You know what? The Senate is advising right now. We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court, that we’re going to have an election.
Yes, the Republican base probably agrees with Cruz. But it will be a much harder sell to the center — or even center-right — voter. The “advise and consent” role for the Republican-controlled Senate means the chamber can and should ignore a presidential pick to serve on the country’s highest court? That’s not going to ring true for most people.
Here’s what McConnell, Judiciary Committee Chairman Charles E. Grassley (Iowa) and other key Republican senators should have done.
Step 1: Say almost nothing about Obama picking someone to replace Scalia other than that the person will get a “fair hearing.”
Step 2: Convene the standard hearings on Judiciary for the nominee. Aggressively question him or her as you would any other nominee in Obama’s presidency.
Step 3: Never allow a vote on the nominee, using the 60-vote filibuster threshold as your best friend. (Fourteen Republicans would have to join the 46 Democrats and independents in the Senate to break said filibuster. That ain’t happening.)
That simple three-step process would get Republicans to the place where the base wants them to be — no Obama appointee to the court — without looking like the kids who took their ball home and refused to play the game because they didn’t like the rules. Obama proposed someone, the Republican majority in the Senate gave that person a chance and decided that he or she didn't meet their standards. Case closed.
Would Obama and Democrats in the Senate, House and on the presidential campaign trail go ballistic about filibustering a court nominee? Sure, but it’s a much more defensible position for the center of the electorate that wants to believe the GOP can govern. Plus, do you really lose anything with the Republican base if you hold contentious and high-profile hearings where the GOP senators run the nominee through the wringer? Hard to see how.
With McConnell’s statement on Saturday night, the chance for Republicans to “win” on the court nomination becomes remote. Refusing to even take part in the process — even though that process could have easily yielded the GOP’s desired result — hands Obama and Senate Democrats a political cudgel to bash the GOP.
It’s an unforced error by Senate Republicans that will be difficult to mop up. And one that could cost them at the ballot box in November.