The White House staff recently staged a photo op of President Obama walking through the West Wing colonnade carrying a thick binder filled with Supreme Court candidates. Call it (to paraphrase Mitt Romney) Obama’s “binders full of liberals.”
But here’s the question: What judicial candidate in his or her right mind would accept Obama’s nomination?
Senate Republicans have made clear that any Obama nomination to the Supreme Court is dead on arrival. No hearings, no meetings, no vote — zero chance of being confirmed. In other words, Obama will be asking someone to be the pilot of a political kamikaze mission. Who would agree to do that?
Anyone who accepted would be throwing away any chance of ever making it to the Supreme Court under a future president. Think about it: If you are a serious liberal judicial candidate, and you think that Hillary Clinton might nominate you a year from now, why would you accept Obama’s doomed nomination today and ruin your chances of getting bipartisan support and 60 votes needed to get confirmed under a new president?
Not only will you never set foot on the Supreme Court dais, you will have your record torn apart. Politico reports that conservative groups such as America Rising and American Crossroads “are preparing to inflict maximum political pain on whomever President Barack Obama nominates for the Supreme Court.” With no Senate hearing, you will never get a public forum in which to defend your reputation. When outside groups are done carpet-bombing Obama’s pick, we will find out (to paraphrase Sen. Ted Cruz) whether judicial nominees glow in the dark.
Of course, the Obama administration will try to convince its chosen victim that the GOP’s position is unsustainable. Once there is an actual nominee, the administration will say, Senate Republicans will have no choice but to cave — because public pressure will be so great and they will not want to risk being painted as obstructionists in an election year.
Wrong. All the politics favor the GOP holding the line.
There is no public groundswell for a confirmation vote. The White House points to polls showing that a slight majority of voters prefer that the president and Congress fill Justice Antonin Scalia’s seat now, but other polls show that voters are evenly split on whether the Senate should wait for the next president — it all depends on how the question is asked.
But this misses the point. For most voters, the Supreme Court nomination is not the most pressing issue in this election. In 2008, the last time a new president was elected, only 7 percent said it was the most important factor in their choice. The fact is that most voters care far more about jobs and national security than whether the Supreme Court has eight or nine justices for the next several months.
But the Supreme Court nomination is a top issue for the GOP’s conservative base. And in case potential nominees have not noticed, that base is really, really angry with the Republican establishment in Washington. That’s why Donald Trump is currently headed for the Republican presidential nomination.
These voters are fed up. They have been told time and again that their anger at Washington Republicans is unreasonable — that it is impossible to repeal Obamacare, force Obama to rescind his unconstitutional executive orders or stop the miasma of federal spending so long as Obama wields his veto pen.
But when it comes to a Supreme Court nomination, Senate Republicans hold all the cards. Obama is powerless to force them to hold hearings or a vote. They have it completely within their power to stop the president from replacing Scalia. It is purely a matter of political will. If Republicans were to cave and allow Obama to cement a liberal majority on the court, the base would never forgive them. The simmering volcano driving the Trump campaign would erupt. It would guarantee that Republicans lose the Senate in November.
By contrast, if Senate Republicans hold their ground, angry grass-roots conservatives have a reason to hold their noses and vote for Republican senators about whom they are otherwise unenthusiastic. The conservative base knows that it needs to not only win the presidency but also hold onto the Senate to get a conservative nominee. Standing firm against a liberal justice will help vulnerable senators secure their base, which cares more about the issue than any moderate or independent voters in their states do.
Anyone who accepts this nomination under these circumstance will never be confirmed and will regret playing a part in Obama’s political charade. Moreover, the candidate will be, by definition, unqualified for the post — because it means he or she is willing to be Obama’s pawn in an unwinnable fight that will make him or her politically radioactive.
In other words, good luck with your “binders full of liberals,” Mr. President. We’ll see whether any of them are suicidal enough to say yes.
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