Supreme Court Showdown

McConnell in February:

“'The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” McConnell said in a statement."

And today we get from NPR:

"HATCH: What I know about Judge Garland - he's a good man, but he shouldn't be brought up in this toxic environment. I'm tired of the Supreme Court being used as a battering ball back and forth between both sides.

Which toxic environment is he talking about?  The one that began with McConnell saying that the Republicans' top priority was to make Obama a one-term president?  The one where Republicans have been holding up hearings on most Obama nominated judges?  The one where Republicans have voted over 50 times to repeal the Affordable Care Act?    I think if sometimes Obama gets a bit touchy, it's understandable.   But if one really believes a piece of legislation is detrimental, shouldn't they fight to prevent it?  Yeah sure, but when every piece of legislation is a crisis and no judges can be approved in the first, second, or third, let alone fourth year of Obama's term, then you have to rethink your position.

MCCONNELL: It seems clear that President Obama made this nomination not with the intent of seeing the nominee confirmed but in order to politicize it for purposes of the election."

Scalia died.  Obama is responding to that vacancy on the court, by doing his constitutional job of nominating Supreme Court judges.  Obama didn't pick when Scalia died.  The judge he's nominated - Merrick Garland - appears to be the least political judge he could have found who would also be acceptable to his own party.  The Republicans have had a long term strategy through the Federalist Society to turn out judges who will be decidedly more conservative in their decisions.  Leaving vacant judgeships is less of a concern for Republicans in the Senate than preventing liberal or even apolitical judges from being appointed.

There's no question that Democrats are just as concerned about a judge being appointed who would overturn Roe v Wade and other key issues as the Republicans are concerned about approving judges who would affirm Roe v Wade.  But the president was elected and his level of popularity is higher than the Senate's, despite how much he's been bashed by the right for the last seven years.

It is the job of the US Senate to approve or reject the president's nominations to the court.  Not holding a hearing is a form of rejection.  One could argue the constitution doesn't require them to hold hearings, but if they refuse to confirm most judges (and other appointments) there comes a time when government is unworkable.  And the dysfunction becomes worse than any specific appointment could be.  Presidential year and  yearlong vacancies are rare.  The last Supreme Court approval in an election year  was  Reagan appointee Anthony Kennedy  in 1988.   The last year long (363 days) vacancy on the court was over 45 years ago - in 1969.

Obama's nominee - Merrick Garland- appears to be the most appealing nominee (to today's Republicans) a Democratic president could make.  He's white.  He's male.  And he's 63 years old. That makes him older than Roberts (who has served 10 years already), Sotomayor (who has served six years), and Kagan (who has served five years.)  He's apparently not ideological.  But still, even if he makes decisions based on the law and the facts, that's not good enough for Republicans.

Republican intransigence has paid off for them by forcing Obama to nominate someone with a less liberal bent than he might have preferred.

But refusing to even hold hearings could backfire on the Republicans.  First, it could look like - to independent voters - as though they were simply blocking the candidate in hopes a Republican president will give them a better option.  And few would argue believably that this isn't the case.  Such voters might sit out the election or vote Democratic.

Second, if they don't win the presidency in November, then the next president is likely to go for a much more liberal supreme court nominee.  And given the meltdown in the Republican party, there's a good chance that many conservative voters could simply sit out the election.  If that happens, the Democrats could even take back the Senate making confirmations easier.

The Republicans do have an out.  They can wait to see how the November elections go and then approve Merrick after the election.  Should the Democratic candidate win along with a change in party leadership in the Senate, I suspect they will quickly ratify Merrick before the new president is in office.

It would be nice though, if McConnell would just say:  "We are going to block this nominee because we're hoping a Republican president will fill this position with someone who will vote the way we want him to vote."  Well, he's getting as close to that, and it's obvious to most people that that's what he means.