At first glance, President Obama's nomination of Merrick Garland to the Supreme Court would seem to be a great deal for Republicans.
Garland is a liberal, but on the moderate end of the spectrum. He's 63 years old, meaning his tenure on the Court could be relatively short. And crucially, with Donald Trump dominating the Republican primaries, the chances that Democrats will sweep to victory in 2016 and appoint an even more liberal Scalia replacement appear to be rising.
So if all the GOP cares about is who ends up getting on the Court, there's a real case that Obama has offered them the best deal they could reasonably expect.
But Republican leaders, senators, and activists care about many other things — for instance, their own career prospects. And those incentives might lead them not to care very much if Garland is a good deal.
Indeed, a cynic might say that many Republicans' top priority won't be to limit the Court's move to the left — it will be to avoid getting their own fingerprints on the confirmation of a justice who will pull the Court to the left.
And if that's their true aim, then the right play is to not lift a finger to help Garland — even if that ends up playing right into Democrats' hands.
Why Garland seems like a good deal
Literally since the day of Justice Antonin Scalia's death, Republican leaders have dug in and insisted that they would refuse to confirm anyone President Obama nominated as a replacement. Instead, they said, the next president should choose Scalia's replacement. And they obviously hoped the next president would be a Republican.
Then Donald Trump started winning most of the primaries. Trump is deeply distrusted by conservative activists, and no one has a really clear idea of what sort of person he'd end up nominating to the Court if he won the election.
But perhaps even more importantly, Trump is viewed as likely to lose the election. He is deeply unpopular among the general public, and polls have consistently indicated that he performs worse against Hillary Clinton in the general election than any of his remaining rivals. Furthermore, a Trump loss would likely mean that Republicans lose the Senate too (since eight Republican seats in blue or swing states are on the ballot, compared with just two Democratic seats in red states).
Amidst all this, Obama nominates Merrick Garland. Judge Garland is definitely not someone most Republicans would like to see on the Supreme Court, but he's actually a bit of an olive branch to them, for two main reasons.
First, there's his ideology. Now, Garland doesn't appear to be a "moderate," per se — he would definitely be part of the Court's liberal wing and would move the median vote on the Court substantially to the left. Yet he was viewed as one of the most moderate of Obama's potential picks, and some progressive groups hoping for a staunch liberal have greeted his selection with muted enthusiasm.
Second, there's his age. Garland is 63, which would make him the oldest Supreme Court justice nominated since 1971. And that could be immensely consequential because this is a lifetime appointment. Because of his age, Garland simply isn't likely to remain on the Court as long as some of Obama's other potential picks. As UC Irvine law professor Rick Hasen writes on Election Law Blog:
"It gives the President a win, but one which as a matter of probability and actuary tables won’t be on the Court as long. It is a way for Obama to say that he could have reached for greater power over SCOTUS, but compromised."
Considering all this, Justice Garland may not sound so bad after all.
But politicians don't just care about how the Court ends up. They care about their own careers.
It's a mistake, though, to only look at the Court here. Politicians care about the Court, sure — but they probably care a whole lot more about their own political futures. And voting for Garland could seriously imperil many those futures.
Garland's confirmation would likely be a pivotal moment in the Court's modern history. A five-justice conservative majority that has existed for decades would be replaced by a five-justice liberal majority.
If that happens, it will be remembered and rued by conservative activists for years as a disastrous shift leading to a string of freedom-crushing liberal decisions. The fact that Garland is not as young as he could have been, or not quite as liberal as he could have been, will be little comfort.
When Republican senators are hammered by their primary challengers for handing Obama and the Democrats a Supreme Court majority, what do they say in response? "Given actuarial tables, he'll probably only be on the Court for 20 years, not 30"? "Well, if we hadn't caved and confirmed him, some other liberal would have gotten through and made things much worse?"
Now, imagine if Garland's nomination is blocked but Hillary Clinton and the Democrats crush Donald Trump in 2016. Then they push through some super-young and super-liberal replacement for Scalia — say, some 40-year old democratic socialist.
That's an outcome that would be far more ideologically disastrous for conservatives than a Garland confirmation. But Republican senators will be able to tell their base that they had nothing to do with it. Activists, too, could say that at least they fought rather than surrendered.
Of course, Republican senators in blue or purple states, and those up for reelection this year, face somewhat different incentives: The strategy to obstruct any Obama replacement for Scalia doesn't poll very well among the public. So there could well be some defections from McConnell's strategy this year.
Still, the general electorate doesn't care all that much about Supreme Court nomination fights. Few November 2016 voters will likely shift their views because of Merrick Garland. The people who deeply care about this stuff are the activists who vote in primaries. Most senators will likely calculate that keeping them happy matters most.
The lame-duck scenario
There's one remaining catch, however. If Clinton wins big in November and Democrats retake the Senate, Republicans will still control the Senate for another two months — the "lame duck" period.
Now, President Obama could withdraw Garland's nomination if he so chooses, perhaps saying that Clinton should fill the vacancy. But maybe he truly would like to see Garland on the Court — not everything is political, after all.
So, given the apparent certainty that a younger and more liberal Supreme Court nominee from Clinton would soon come down the pike, might Republicans simply rush through Garland's confirmation then?
I'm skeptical. If most Republican senators have refused to even hold hearings on Garland for eight months while repeatedly maintaining that the next president should fill his seat, such a move to rush his confirmation through would be a naked about-face and a very tough political sell — both to the GOP base and to the general public.
Politicians generally seek to avoid looking quite as craven as that. Weirdly enough, a process that could result in a more liberal Supreme Court could actually be better for Republican politicians' own careers.
