:format(webp)/cdn.vox-cdn.com/uploads/chorus_image/image/49492941/GettyImages-515910394.0.jpg)
The 2016 presidential campaign and practical politics in the United States Congress have been operating in two parallel universes for months now. But with Donald Trump the all-but-certain Republican Party nominee, that's about to change. A raft of GOP senators standing for reelection in blue or purple states are going to find that they are in a very uncomfortable situation thanks to a trap Majority Leader Mitch McConnell inadvertently set for them.
The problem is Merrick Garland, the relatively moderate circuit court judge Barack Obama named as his preferred replacement for Antonin Scalia on the Supreme Court. Republicans won't hold a vote on his nomination — they won't even hold a hearing — on the theory that it's inappropriate to fill a Supreme Court vacancy in an election year.
That was a principle that served its purpose when it was first laid down but now serves another purpose entirely — directly linking every Senate election in the land to the presidential race.
Origins of a Supreme Court blockade
The official Republican Party position on Garland came together remarkably quickly back on February 13. At this point most GOP leaders were still assuming that when the then-crowded field of candidates began to thin, there would be a natural coalescence around a conventional politician.
Utah Sen. Mike Lee's communications director kicked things off:
What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?
— Conn Carroll (@conncarroll) February 13, 2016
If anything this will put a full stop to all Obama judicial nominees going forward.
— Conn Carroll (@conncarroll) February 13, 2016
Ted Cruz was quick to agree from the right flank of the presidential field:
Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.
— Ted Cruz (@tedcruz) February 13, 2016
All of Cruz's competitors for the nomination swiftly agreed in a televised debate, and conservative pundits also hopped on the bandwagon.
Now, at this point a fairly normal thing in the context of American political history would have been for more electorally vulnerable members of the Senate GOP caucus to raise doubts about this strategy, and then for the party's caucus leader to tell his backbenchers that there was no way to hold everyone together on this idea. But that's not the modern-day GOP. McConnell picked up the Cruz/Lee/Trump line on holding the seat vacant, so did Judiciary Committee chair Chuck Grassley, and so did the rest of the caucus.
Now, two and a half months later, we have GOP senators from New Hampshire, Ohio, Pennsylvania, and elsewhere holding a Supreme Court seat open for Trump.
An awkward situation for Republican senators
It's by no means unusual for a smattering of legislators here and there to face the problem of a top of the ticket who is unpopular in their home state (just ask Joe Manchin).
The way you deal with it, of course, is by distancing yourself from some of the presidential candidate's less popular stances and emphasizing the idea that you are an independent thinker.
But this is precisely what makes the Supreme Court issue so difficult. The refusal to even hold a hearing or a vote on Obama's nominee is the opposite of independent thinking. It's a pure party position — a stance that the outcome of the November election should be decisive in shaping the outcome, and therefore that Republicans would rather defer to Trump's judgment.
Republicans who vow to deny Garland a hearing and who pledge to support Donald Trump if he is their party’s nominee are saying: Democracy somehow requires that this vacancy on a non-majoritarian institution must be filled only after voters have had their say through the election of the next president. And constitutional values will be served if the vacancy is filled not by Garland but by someone chosen by President Trump, a stupendously uninformed dilettante who thinks judges "sign" what he refers to as "bills." There is every reason to think that Trump understands none of the issues pertinent to the Supreme Court’s role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters — arrogance leavened by frivolousness.
Trump’s multiplying Republican apologists do not deny the self-evident — that he is as clueless regarding everything as he is about the nuclear triad. These invertebrate Republicans assume that as president he would surround himself with people unlike himself — wise and temperate advisers. So, we should wager everything on the hope that the man who says his "number one" foreign policy adviser is "myself" (because "I have a very good brain") will succumb to humility and rely on people who actually know things. If Republicans really think that either their front-runner or the Democrats’ would nominate someone superior to Garland, it would be amusing to hear them try to explain why they do.
Of course, in political life every once in a while you have to take a calculated risk in pursuit of some goal or another.
But that's what makes the GOP's procedural stand in favor of holding a Supreme Court seat vacant for a year so that Trump can fill it so odd. It wasn't calculated at all. It's something Republicans fell into one weekend after a spurt of hot takes on Twitter without really thinking it through. And now it's going to come back to haunt them.
