by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The conventional wisdom, shared by me, is that the Republican stonewalling of judicial nominee Merrick Garland will last until Election Day, at which point one of two things will happen. Donald Trump will win, the president will withdraw Garland’s name from consideration, and the next Senate will take up Hulk Hogan’s nomination in January. Or Hillary Clinton will win, and after her inauguration Garland or some other choice of hers will be confirmed. Let’s stipulate that these are the most likely outcomes.
But what if we’re wrong? What if the Republican stonewall persists even after Clinton wins in November? What if Trump wins and the Democrats block his nominee indefinitely? Theoretically the nominee of any president could be denied a seat on the Court for as long as the opposing party has the votes to sustain a filibuster.
Granted, in the event of an extended vacancy on the court, majority leader Chuck Schumer likely would change the rules of the Senate to allow an up-or-down vote for President Clinton’s nominee—the so-called nuclear option. But imagine a scenario where the 2016 election results in the same political configuration as today: a Democratic president and a Republican Congress. What incentive would McConnell have to confirm a liberal justice then?
I don’t think he would have any. On the contrary: The incentives run in the other direction. The deciding vote on the Court has become so important, and the country so polarized, that the cost to either party of handing a majority to its adversary is too high to bear. It’s an unanticipated consequence of the outsized role the judiciary plays in our national life: The Supreme Court has become so influential that the legislative branch now has every reason to reduce its strength, and thereby its power, by not allowing new members to don the black robes.
No senator, Republican or Democrat, wants to green light the other side’s agenda. More than ideology is at work here. This week the Pew Research Center revealed that, for the first time in nearly a quarter century of surveys, “majorities in both parties express not just unfavorable but very unfavorable views of the other party.” Majorities of both parties say the reason they joined the Republicans or Democrats is because the other side’s policies are “bad for the country.” The worse your view of the other party is, the likelier you are to say its policies “threaten the nation’s well-being.” Cross-party friendships still exist. But Pew found that such relationships depend on one’s attitude toward the other side. Basically, we hate each other’s guts.