A Supreme Gamble

UNITED STATES - MARCH 17: Supreme Court justice nominee Merrick Garland talks with Senate Judiciary Committee Ranking Member
UNITED STATES - MARCH 17: Supreme Court justice nominee Merrick Garland talks with Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., during a meeting in Russell Building, March 17, 2016. (Photo By Tom Williams/CQ Roll Call)

Antonin Scalia's death triggered another episode in the extraordinary polarization of American society and the Supreme Court itself. The Republican Party has long insisted that it will categorically refuse to consider any nominee Barack Obama would propose to replace Scalia on the Court. It stuck to its guns when Obama recently nominated Merrick B. Garland, a respected moderate judge. In its view, "the people" should decide who will replace Scalia by giving this responsibility to the next president. Of course, "the people" already elected Obama, which gives him the power to appoint justices. Critics therefore argue that such obstructionism violates the constitutional process and could damage the GOP's reputation.

However, the Republican Party's gamble was predictable. One way to think of the issue is by borrowing a concept from economics: sunk costs versus opportunity costs.

Sunk costs generally refer to the time and resources invested doing something. Here, it is no secret that the Republican Party resorted to an unprecedented degree of obstructionism during the Obama years, as illustrated by its record number of filibusters. Once Obama entered the White House, Mitch McConnell, the GOP's leader in the Senate, squarely admitted that "the single most important thing we want to achieve is for President Obama to be a one-term president."

The party systematically refused to compromise and saw Obama as an illegitimate president with a ruinous agenda. Hardliners like Senator Ted Cruz also played a key role in precipitating the shutdown of the federal government in 2013. This strategy was partly made possible by how Republican leaders convinced their base that Obama's health care reform is a "radical socialist" policy even though it is based on past plans from Richard Nixon and the Heritage Foundation that were initially instituted in Massachusetts by Mitt Romney when he was the Bay State's Governor.

Given the considerable stock that Republican leaders invested in obstructing Obama's agenda for nearly 8 years, it would seem obvious that they would not finally bow down and consent to letting Obama appoint a replacement to Scalia. The sunk costs would seem plainly too high to change strategy at this stage.

On the other hand, opportunity costs basically refer to wasting an opportunity by doing something else. If the Republicans consent to letting Obama appoint a justice, they might waste the opportunity to do so if a Republican wins the presidency in November. The opportunity would seem too big to waste considering the Supreme Court's colossal importance. "President Obama's nominee would flip the court from a 5-to-4 conservative to a 5-to-4 liberal-controlled court, and that's the concern," Senator Ron Johnson, the Wisconsin Republican, candidly recognized.

But this calculation might reflect the "sunk costs fallacy," namely relentlessly pursuing a self-defeating strategy and overlooking other opportunities. Polls suggest that the public mostly blamed the GOP for the 2013 government shutdown crisis. Similarly, a majority of the public believes that the Senate should consider Obama's Supreme Court nominee. Along with the hardline agenda of the current Republican presidential candidates, from Donald Trump to Ted Cruz, the party's obstructionist strategy might backfire by alienating moderate voters. Yet, the GOP would feel vindicated if it reclaims the presidency. We will probably find out on election night if this gamble paid off.

One may regret that the Supreme Court has become a politicized institution but such strategic calculations do not come out of nowhere - they reflect the growing ideological divide nationwide. As the political scientist Alan Abramowitz describes in his book The Polarized Public, "supporters of the two parties [are] more deeply divided in terms of ideology and policy than at any time in recent history." Given the Supreme Court's power over scores of controversial issues, from campaign finance to climate change, abortion, gay rights, race, immigration, the death penalty, and beyond, the clash over the next nomination was a crisis waiting to happen.