Who Believes the GOP Is Serious About Blocking Obama's Supreme Court Nominee?

UNITED STATES - FEBRUARY 09: From left, Sens. Roger Wicker, R-Miss., John Barrasso, R-Wyo., John Thune, R-S.D., Senate Majori
UNITED STATES - FEBRUARY 09: From left, Sens. Roger Wicker, R-Miss., John Barrasso, R-Wyo., John Thune, R-S.D., Senate Majority Leader Mitch McConnell, R-Ky., and Majority Whip John Cornyn, R-Texas, conduct a news conference after the Senate Policy luncheons in the Capitol, February 09, 2016. (Photo By Tom Williams/CQ Roll Call)

Senator McConnell and the Republican majority on the Senate Judiciary Committee have pledged that they will not "hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017." Now, the problem with this pledge is that only about 8% of Americans believe our members of Congress are honest -- about the same percentage of Americans who view car salesmen and telemarketers as honest. So why believe Senator McConnell and his colleagues about this pledge?

Many Democratic and Republican voters rightly wonder whether this pledge is just more political theater, designed to enhance the GOP's fundraising and excite its voter base -- after all, we've seen this movie before.

The GOP treated America to a government shutdown, in 2013, over Obamacare. Then, after the grandstanding and fundraising, the GOP (despite being the majority party in Congress) backed down and conceded defeat. The GOP majority has folded -- numerous times, and on significant issues -- despite its professed commitment to block President Obama and the Democratic minority: on the Iran deal, the confirmation of Loretta Lynch as Attorney General, the failure of the GOP to defund Planned Parenthood, and much else.

Once President Obama nominates someone, the GOP will be under pressure to at least meet with the nominee. Next, pressure to hold hearings will intensify -- particularly, closer to the November elections, when some GOP Senators will want to appear more moderate. And, as it becomes clearer who will be the next President, many GOP Senators may suddenly decide to consider President Obama's nominee (particularly, if a moderate) since it's doubtful they'll look forward to whomever (for example) a President Clinton or Trump might nominate.

The GOP Senators' pledge resembles a tale "told by an idiot. Full of sound and fury. Signifying nothing", because it is:

  1. Costless: Not only does the current GOP position not cost them anything, it's free publicity with the GOP's voter base and likely attracts campaign contributions.
  2. Non-binding: There's no punishment (except perhaps, some annoyance among their voter base) for any GOP Senators who change their minds later this year. Senators in close re-election contests might actually benefit by voicing strident opposition now (prior to primaries when they need to appeal to conservatives and/or raise funds), then quietly retreating from their position closer to the actual election (when they need to appeal to independents).
  3. Unverifiable: No one really knows how strongly any given GOP Senator feels about this issue.

Given their track record and Americans' lack of trust in our GOP-led Congress, McConnell and other Republican Senators need a way of convincing us they are serious and will pay an actual penalty if they fail to honor their pledge.

For example, each GOP Senator could sign a legally binding and irrevocable resignation letter effective, if and only if, the Senator votes to allow a confirmation hearing, or votes for President Obama's nominee.

After signing such a conditional resignation letter, the GOP's talk will no longer be cheap posturing. For GOP Senators who don't stand firm on their proclaimed position, but instead vote to allow President Obama's nominee to be considered or confirmed - resignation serves as a significant penalty. Signing the conditional resignation letter is cost free for the GOP Senators who are honest about their position, but very expensive for those Senators planning on changing their minds later in the process. If all GOP Senators signed this type of resignation letter, President Obama might not bother nominating anyone - under this scenario, he might not be able to find anyone to nominate (or anyone already put forward for nomination might withdraw, realizing they'd never be confirmed).

So, if you're a conservative donor getting requests to fund your GOP Senators' derailment of President Obama's Supreme Court nominee, ask them to publicly commit in writing to resigning if they don't keep their word on this issue. If they aren't willing to sign, realize they may already be considering changing their minds later on.

And, unless a significant group of GOP Senators sign this type of conditional resignation letter, potential Supreme Court nominees should understand that at least some GOP Senators are bluffing, and plenty of scenarios exist where the nominees are likely to be evaluated on their individual merits.

Note: Some convenient law might prevent U.S. Senators from signing this exact type of pledge, but if the GOP were serious, it would create an enforcement mechanism making defections costly (such as, a legally enforceable obligation to donate a substantial sum to a charity).