George Will has a new piece here in which he chastises Republicans for their opposition to the Garland nomination.
Ed Whelan has a rejoinder here at Bench Memos.
On balance, Whelan has the better of the argument, mainly because he explains how Will entirely overlooks the chief factor in opposing Judge Garland or anyone else: that this nomination will tilt the balance of the Court to the Left, even if not dramatically so. The kinds of arguments that Will attacks are, of course, the kinds of arguments that could be made with respect to most any nomination for the Court. But this particular one is different, for the reasons that Whelan, but not Will, describes. I doubt many of the arguments that Republicans are making now, and that Will critiques, would have much salience if it were Justice Ginsburg’s seat, or Justice Breyer’s, at issue. Filling those seats would not shift the balance of the Court in meaningful ways, though Republicans might still oppose a very liberal pick (I also think that if it were Ginsburg or Breyer being replaced, Republicans would jump at the chance to have Judge Garland fill the seat).
Let me say something in Will’s favor, though, because I don’t think he is entirely off base here. First, the Senate Republicans have been incoherent in much of their argument about the Scalia seat. Yesterday, for example, we saw Majority Leader Mitch McConnell disavow the idea of considering Judge Garland in the lame-duck session in November and December (recall that I had suggested this approach as a possibility, and others have done so, as well). But why disavow this? One of the major flaws in the Republican public communications strategy thus far has been to speak in absolute, categorical terms. But with so many unknowns in this election season, why speak categorically, especially if it means that you have to accede to Hillary Clinton’s judicial wish list later?
It seems it would make more sense to say the following: 1) the Senate may very well consider the Garland nomination at the appropriate time, but the Senate needs more time to evaluate whether Judge Garland is an appropriate replacement for Justice Scalia; 2) while Judge Garland is a fine man and has a distinguished record of service that the Senate appreciates, at the moment a majority of Senators are not persuaded that Judge Garland is the right choice for this seat on the Court, and would prefer a conservative constitutionalist in the mold of Justice Scalia; 3) in keeping with its power to refuse consent, the Senate’s refusal to vote on the Garland nomination serves, for now, as non-consent; but 4) because there is the possibility of consenting to the nomination at a later date, holding a vote too soon would be imprudent. Also, it would make sense if Leader McConnell had already sent to the President a list of names that would be acceptable to the Senate majority, even with the understanding that the President would never consider them (and if McConnell has not yet done so, he should do so now, as a formality if nothing else). Done this way, then, there can be no question that the Senate is exercising its advise and consent function.
But Republicans, as Will notes, have used a strange “democracy” argument about this seat on the Court, an argument that I also criticized in my last post on this. And to the extent that voters were not thinking about Supreme Court nominations when they voted for Barack Obama in 2012 and for a Senate Republican majority in 2014, then there is little reason to expect that it would be a bigger issue for those voters this year. After all, both sides made Supreme Court nominations an issue in those previous campaigns.
Second, Will correctly notes the troubling connection between the Republican strategy and the professed support for Donald Trump, should he become the nominee. Will is right about everything he says about Trump. Moreover, Republicans can no more guarantee the nomination of a constitutional conservative if Trump is the President than they can if Hillary Clinton is the President (and there is reason to trust Clinton more than Trump). Trump is neither a conservative nor a constitutionalist. And his unbounded hubris would, in this area as in all others, likely prevent him from listening to the good sense of others. He is simply too unpredictable and self-aggrandizing to trust with such an important task. Placing an “R” next to his name does not change those realities.
But the contention that Garland is a better nominee than we would get from Clinton or even Trump lends even greater force to the lame-duck session strategy. That strategy, however, comes with a caveat: the President could always withdraw the nomination, something not out of the question if Clinton wins and asks for the withdrawal. President Obama could do so as a matter of comity and deference to the new chief executive. But doing so would force him to take back all of the things he said last week when nominating Judge Garland. So there is a risk here for the Democrats, too: do they continue to push Judge Garland as the right man for the job (a narrative many of them do not actually believe), with the possibility that they may have to retract those words later? Or do they sound equivocal on Judge Garland, with the hope that Hillary Clinton will be able to make a choice more friendly to the political Left?
Both sides may have botched this whole thing a little. Republicans, though, can make their own strategy a lot easier and clearer: don’t make Trump the nominee.