Republican Justice (Maybe Mix)

Contemplation of Justice

Steve Benen, after reviewing the appalling stupidity of the Republican pitch against confirming a Supreme Court nominee, including their reaction to the nomination of Judge Merrick Garland, found himself adding a postscript:

Sen. Orrin Hatch (R-Utah), who just last week explicitly urged Obama to nominate Garland, said in a statement this morning that Garland’s nomination “doesn’t in any way change current circumstances” – which is to say, Hatch still supports his party’s blockade.

However, Hatch also added this morning, “I’d probably be open to resolving this in the lame duck.” Keep a very close eye on this, because it may prove to be incredibly important. As things stand, Senate Republicans don’t intend to reject Garland, so much as they plan to ignore him. His nomination won’t be defeated; it’ll simply wither on the vine.

But if Republicans fare poorly in November’s elections, don’t be too surprised if GOP senators declare, “Well, now that voters have had their say, we’re prepared to confirm Garland after all.”

The msnbc producer and blogger advises readers to, “File this away for future reference”, and it behooves us to do so. One of the blessings facing pretty much any president seeking a new Supreme Court justice, and especially Democrats as such these days, is that there is a plethora of qualified candidates. In the end, given all else, one wonders if perhaps the “moderate, inoffensive, broadly respected, 63-year-old white guy” is actually the sacrificial lamb.

After all, Republicans made a stand, and in various instances we might wonder if the White House was trolling them. When word emerged that Nevada Gov. Brian Sandoval was someone President Obama was interested in considering for nomination, the Nevada Republican explicitly said no. Sen. Chuck Grassley, an Iowa Republican whose worst electoral showing has been a thirty-one point win, suddenly finds himself embroiled in controversy after rejecting the mere suggestion that President Obama might nominate Judge Jane Kelly. Mr. Grassley helped Judge Kelly negotiate Republican hostility to any Obama court nomination when she was confirmed to the Eighth Circutit in 2013, but now will not consider the Iowan. Democrats, for some reason, think this offense is enough to make the chairman of the Senate Judiciary Committee vulnerable in November.

And word also emerged that the White House was considering Judge Ketanji Brown Jackson, whose nomination to the D.C. Circuit in 2013 received a boost in the form of high praise from Republican former vice-presidential nominee Paul Ryan, who ahs since ascended to the House Speakership. Judge Brown is a relative of Mr. Ryan’s; the Senate will not confirm her.

Attorney General Loretta Lynch withdrew from consideration, and there is obscure symbolism there running deeper than making a point about how stupid Senate Republicans are being. Judge Adalberto Jordan withdrew his name from consideration, and we are left to presume it is merely coincidental that he did so shortly after Sen. Majority Whip John Cornyn (R-TX) threatened to―you know, metaphorically, we think―beat a Supreme Court nominee like a piñata.

And this, perhaps, is where the blessing becomes strange; to the one, there is the prospect that Judge Garland, the “moderate, inoffensive, broadly respected, 63-year-old white guy” is a sacrificial lamb; Republicans have, after all, suggested the nominee won’t want to go through the process again when the next president re-nominates. Indeed, this is actually part of the rationale for not considering a nomination. As Mr. Cornyn explained: “What I don’t understand is how someone who actually wants to be confirmed to the Supreme Court would actually allow themselves to be used by the administration in a political fight that’s going to last from now until the end of the year”.

That is to say, by the Republican posture, Judge Garland doesn’t actually want to be on the Supreme Court; it’s a perfect excuse to not consider him.

Benen offers that part of the analysis:

It’s worth stepping back for a moment to appreciate just how extraordinarily crazy all of this is. In the month since Antonin Scalia’s death, Senate Republicans have been unusually irresponsible, even for them, announcing they would hold no hearings and no votes on Obama’s nominee, regardless of who’s chosen. Despite GOP talking points about “tradition,” such a blockade has never even been attempted in American history.

So, the president went out of his way to offer Republicans a compromise, nominating a moderate, inoffensive, broadly respected, 63-year-old white guy. As of now, the GOP Senate majority just doesn’t care.

If it seems strange that the question of Justice itself should be this manner of political compromise, there are plenty who would, at the very least, not disagree. After all, if one’s nomination to the highest court is itself a political chess maneuver?

But in a way, the blessing of the talent pool holds.

While Benen looks to the lame duck period, because, well, why would we not, since Sen. Hatch (R-UT) said so, this doesn’t go on that long. The gauge, here, is the U.S. Senate itself; there is a Class III Senate election taking place this year.

Stuart Rothenberg of Roll Call went so far over the weekend as to use the word “probable” in describing a potential Senate swing to Democratic control. The condition there is a Trump or Cruz nomination, and the analysis is just enough to perk the ears of Democratic supproters. It is possible, to be certain, but the headline actually uses the word probable, which is worth considering here.

The Senate will confirm Judge Merrick Garland to the Supreme Court of the United States before Election Day, and probably after the convention.

This prediction is based on a fairly simplistic calculation: President Obama has offered as uncontroversial a nominee as he possibly can; Senate Republicans still pretend no. Sen. Hatch has offered a different answer, a potential pathway, but why during the lame duck?

The answer is the prospect of a Democratic Senate come January. Confirming Garland prevents the next president―presumed in this calculation to be a Democrat―from nominating someone less suited to the conservative palate. You know, someone who is not … er … so … ah … (ahem! cough!) … white … or, you know, male.

Republicans will confirm Garland in order to stave off what they consider an even worse pick.

And that’s the blessing; while the politics surrounding the question of why Garland and not Srinivasan, Kelly, Brown Jackson, Lynch, Jordan (&c., ad nauseam) are about as unfortunate as any misguided pathetic antithetical useless ill-intended conservative pretense of American political dignity might accomplish, we still get a qualified, respected, capable Supreme Court justice out of the process.

The caveat here is that if Republicans can manage satisfactory confidence in their Senate outlook, they won’t need to confirm Garland during the lame duck because they will have invented some new reason to refuse this or any other nominee.

But it might be time to start paying attention to the Senate election. This will be the key in estimating whether and when Republicans will confirm Judge Merrick Garland to the Supreme Court of the United States.

Then again, did I say simplistic? Because even simplicity complicates itself. To wit, Rothenberg concluded―

The GOP’s worsening position for November raises new questions of whether the Republican Senate should take up President Barack Obama’s Supreme Court nominee, when he makes that nomination, or risk dealing with a new Democratic president and a Democratic Senate majority in 2017.

―and therein we might wonder about the Republican calculation. Will confirming Judge Garland in August or September be enough to actually change whatever polling trends frighten the Senate GOP to action? When the proposition becomes a multivalent question mark, perhaps simplistic is the wrong word.

Then again, Sen. Hatch was apparently willing to open this particular avenue for the Great Republican Escape. Misdirection, as clumsy as it might seem, is what comes to mind.

Any thesis, we might suppose, will fall apart, because Republicans have become such a farce unto themselves that we might as well guess blindly, or flip coins, or make an obscure drinking game with deliberately contradictory rules pertaining to a hundred-sided die, in order to figure out what to take seriously.

But the prediction itself is straightforward: Judge Merrick Garland will be confirmed to the Supreme Court of the United States before Election Day.

Yet we find ourselves reminded why it seems so futile to make such predictions.

Noted. Will I ever actually learn?

Maybe. I’m not a Republican, so, you know, it’s actually possible.


Barrett, Todd. “Supreme Court nominee would be a ‘piñata,’ Cornyn says”. CNN. 7 March 2016.

Benen, Steve. “Senate Republicans vow to keep Supreme Court blockade intact”. msnbc. 16 March 2016.

Rothenberg, Stuart. “Dem Senate Takeover Probable, If Cruz or Trump Nominee”. Rothenblog. Roll Call. 13 March 2016.

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