President Obama's "Trump Card" in the Upcoming Supreme Court Nomination Battle

President Obama's "Trump Card" in the Upcoming Supreme Court Nomination Battle
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Largely unnoticed amidst the public hand wringing by Republican Party insiders following Donald Trump's string of Super Tuesday primary victories are their implications for the looming showdown between President Obama and Senate Republicans over nominating a Supreme Court justice to succeed Antonin Scalia. Senate Republicans, led by Majority Leader Mitch McConnell (R-KY), insist that they will neither confirm, nor even meet with, any nominee Obama puts forward, while Obama promises to propose a nominee anyway, setting the stage for a high-stakes political showdown.

In this battle of political wills, Republican control over the confirmation process gives them the procedural upper hand. No wonder that the (coincidental) Super Tuesday meeting between President Obama and Senate leaders produced no movement on the Republican side. That was before Donald Trump's string of victories made him the clear favorite for the Republican nomination.

McConnell's "just say no" strategy depends on Republicans sincerely believing their candidate stands a good chance of winning the White House. Historical patterns suggest they have reason for optimism. After an incumbent President is re-elected, the out-party usually wins back the White House. According to most election forecast models, Obama's middling approval ratings and recent modest economic growth further increase the historical odds of a party turnover in November.

Plus, Republicans have a firewall: their Senate majority. True, they are defending more seats in 2016 than the Democrats (24-10). But if they win the White House their odds of retaining the Senate rise considerably. Even if they lose the White House, with a 54-46 majority going into the election, and a favorable (for Republicans) macro-economic and political environment, the odds of retaining a Republican majority in the Senate look better than a simple count of seats up for election might suggest.

The implication is that by holding out for the next president, the Republicans might do better (if a Republican wins the White House and nominates a conservative justice, thereby retaining a 5-4 conservative majority on the Court), but at minimum stand a pretty solid chance of not doing worse (since a probable Republican Senate majority will still be capable of blocking a Democratic president's ideologically unpalatable nominee in 2017). In other words, so long as the Republicans are reasonably confident that they can recapture the White House, and stand a pretty good chance of also retaining their Senate majority, waiting out the remainder of President Obama's term makes sense. Moreover, there is nothing President Obama can do to alter this calculus.

Enter Donald Trump and exit, as the saying goes, the best laid plans of mice and men. How might Trump change the Republican calculus? Writing in the Wall Street Journal, Republican political guru Karl Rove provides the answer: "If Mr. Trump is its standard-bearer, the GOP will lose the White House and the Senate, and its majority in the House will fall dramatically."

This belief - whether accurate or not - strengthens President Obama's bargaining position vis-à-vis Senate Republicans. Rove's logic - publicly shared by many Republican officials - implies that the likelier it becomes that Trump will win the Republican nomination, the greater become the odds of a Democratic victory in November at both the Presidential and Congressional levels. If a Democrat, say Hillary Clinton, wins the White House and the Democrats recapture the Senate, a newly elected President Clinton is unlikely to be inclined to compromise with Republicans on a Supreme Court nominee.

In such a scenario, should Republicans attempt to filibuster a Clinton nominee, Senator Chuck Schumer (D-NY), as Democratic Majority leader, might respond by extending the ban that his predecessor Harry Reid (D-NY) imposed on filibustering lower court nominations -- the last time Democrats were in the majority -- to include nominations to the Supreme Court.

The upshot is that Senate Republicans increasingly will face the prospect of choosing between negotiating with Obama for a relative centrist nominee now or risk being forced to suffer a significantly more liberal nominee later. With an eye toward his historical legacy, Obama has a powerful incentive to negotiate with Senate Republicans over a mutually acceptable candidate. With Trump's primary victories stacking up, in turn, Senate Republicans too have an increasing incentive to reconsider their line in the proverbial sand.

Of course, Trump's star may yet fade and so too may Clinton's (if, say, she is indicted in the State Department email scandal). If so, the Republicans will retain the upper hand and the stalemate will likely continue.

Even without the Trump factor, Republicans - especially those facing tough re-election battles -- may face mounting political pressure to at least hold hearings on an Obama nominee. Such pressure alone may not break the stalemate. But if Trump keeps winning, springtime may bring with it a thaw in the Senate Republican ice-wall of refusal. If so, we may yet see a Supreme Court confirmation hearing in 2016.

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