With Donald Trump as the presumptive Republican nominee, the stakes for the Supreme Court have become startlingly clear. The position of the Senate GOP under majority leader Mitch McConnell has always been that the next president should decide on Antonin Scalia's replacement — and that, accordingly, they will not so much as consider Barack Obama's nominee, Merrick Garland.
Now that position translates to: We think Donald Trump should pick the next Supreme Court justice.
That is proving to be too much for some conservatives to swallow. RedState, the influential conservative blog, ran an article this morning by Leon Wolf titled, "Republicans Should Confirm Merrick Garland ASAP." Wolf wasn't alone, with other prominent conservatives expressing the same feeling:
I strongly believe the Senate should move forward on Garland at this point. #SCOTUS— Ben Howe (@BenHowe) May 4, 2016
Time to let Merrick Garland through?— Tim Carney (@TPCarney) May 4, 2016
Others are standing their ground, though. Erick Erickson — formerly at RedState, now at the Resurgent — argues, "Republicans rushing now to confirm Merrick Garland would just confirm that they think everything is doomed, anger voters who might help them keep the Senate, and further depress Republican turnout in November."
Hot Air's Allahpundit agrees with the turnout argument, and that confirming Garland would "play into the conservative narrative that McConnell caves too easily and the establishment GOP is effectively in cahoots with Obama."
And McConnell himself isn't budging. His spokesperson, Don Stewart, told reporters after Trump clinched the nomination, "Republicans continue to believe that the American people should have a voice in this decision and the next president should make the nomination."
Why some conservatives are coming around to Merrick Garland
There are a few reasons why Trump's nomination is shaking the consensus on Garland. For one thing, a frequent attack line of #NeverTrumpers is that Trump is not a reliable, consistent conservative. They often invoke, in particular, his long record of pro-choice positions on abortion, which would seem to cast doubt on his willingness to pick hard-line judicial conservatives as president. It would be odd to simultaneously believe that Trump is not a true conservative, perhaps even indistinguishable from Hillary Clinton, and that he ought to pick a Supreme Court justice.
But more importantly, Trump's nomination reduces the GOP's odds of both taking the presidency and holding the Senate, relative to a more conventional nominee like Marco Rubio (it's unclear if he's better or worse than a strident ideologue like Ted Cruz). That starts to make compromising look more attractive.
Think of it this way:
Let's say that for Senate Republicans, Garland is maybe a 4 on a scale of 1 to 10: not ideal, but conservative on criminal justice and older than average. He's the best they could hope for from a Democrat. By contrast, let's say a Trump nominee would be an 8, and Clinton would pick a 2 (someone younger and somewhat to Garland's left).
If you place even odds on Republicans taking back the White House, then blocking Garland means they'll get, on average, a 5 (50 percent times 2 plus 50 percent times 8). That's better than 4, so they should embrace that strategy and block Garland.
But the calculus changes if Republican odds of victory in the presidential race drop. Suppose there's a 75 percent chance Clinton wins. Then the expected value of blocking Garland drops to 3.5 — worse than confirming him.
Of course, these are just illustrative numbers. But the underlying point stands: Trump is unlikely to win the presidential election, which makes Republicans' choice increasingly look like it's between Garland and a younger, more liberal Clinton nominee. And in that comparison, Garland is clearly better.
This analysis all assumes that Trump is reliable, and Republicans can trust him to appoint a conservative nominee to the Court. That assumption may be faulty. Sure, Trump has said that his two preferred nominees are federal appeals court judges Bill Pryor (who described Roe v. Wade as creating "a constitutional right to murder an unborn child") and Diane Sykes (who has ruled that anti-gay groups can't be denied funding for engaging in discrimination), which bodes well for judicial conservatives.
But Trump is untethered to the party apparatus in a way that wasn't true of any Republican nominee since Goldwater. "President Trump would have a free hand to nominate whomever he chooses," Princeton political scientists Jonathan Kastellec and Charles Cameron write at Vox's Mischiefs of Faction blog. "Since he is only loosely tied to the Republican brand and party apparatuses, Republicans need to worry about his commitment to appointing a reliably conservative nominee."
So far, this logic doesn't appear to have persuaded any sitting senators. Even though Sen. Lindsey Graham (R-SC), for instance, declared that Trump has no chance of winning…
If we nominate Trump, we will get destroyed.......and we will deserve it.— Lindsey Graham (@LindseyGrahamSC) May 3, 2016
…but has yet to clarify if that means he's reconsidering his opposition to Obama appointing Garland. Same goes for Ben Sasse, the Nebraska Republican who has made it clear he'll support a third-party candidate over Trump. Neither had replied to a request for comment at press time.