Five months ago I tried to explain why Republicans’ refusal to hold a vote on Merrick Garland makes no sense, and why they should drop their obstruction and go with Garland (complete with hashtag!). Now, five months later, the GOP has held its convention and Donald Trump is the Party’s presidential nominee. And he’s been a disaster.
With Trump’s post-convention meltdown, the Garland obstruction makes even less sense. Most believe Clinton will renominate Garland after she takes office—and no Republican has suggested that the GOP will continue to block him if that happens. So what, pray tell, is the point of the delay? Is it really just a stubborn, spiteful refusal to confirm someone nominated by President Obama—even if it means confirming the same person later, after forcing the Supreme Court to go shorthanded for a year and a half? If so, that seems childish. But maybe that’s fitting for a party now led by the childish, tantrum-throwing Trump.
And therein lies the problem for the GOP. By declaring the “next president” should fill the Supreme Court vacancy—then nominating Trump as their candidate for “next president”—Republicans have turned the Garland blockade into a symbol of their support for Trump. And Trump is childishly self-destructive. If Republicans aren’t careful, he’s going to take the GOP down with him. As of this writing, Trump’s disapproval ratings are over 60%. Disapproval among women and minorities is as high as 70%-90%. He’s so disliked he’s putting red states like Georgia, Arizona, and Utah into play for the Democrats. And young voters are fleeing Trump’s version of the Republican Party in ways that could harm the GOP for decades.
Most importantly—for the immediate future—Trump is putting the GOP’s senate majority at risk. Why is this so important? Because Republicans can afford to play spiteful games with a Supreme Court vacancy only if they maintain control of the senate. There’s certainly no guarantee that Clinton will renominate Garland in January—and it’s even plausible that Obama could withdraw Garland’s nomination on November 9th, saying, “Hey, you guys wanted the voters to decide who should fill this seat, and they’ve decided.” All of which is to say: if the Republicans lose the senate, they face the very real possibility that President Clinton and her shiny new Democratic senate will fill the Court’s vacancy with someone who is both younger and more liberal than Merrick Garland (who is a 63-year-old centrist). And if Trump’s damage to the GOP runs deep, and the Democrats continue to tar Republicans with Trumpism in 2018 and 2020, Clinton and the Dems might just spend the next several years filling Court seats with young liberal lions. Maybe as many as four of them.
Indeed, even if the Republicans retain their senate majority, they won’t get anyone more centrist than Merrick Garland. Not from President Clinton. This is what makes the blockade look so senseless. In essence, the GOP plan appears to be: (1) stall on Garland, hope to keep the senate, then hope to end up with...well, Garland; but also (2) stall on Garland, risk losing the senate, and risk ending up with someone much more liberal than Garland.
So what, exactly, is accomplished by stalling? Nothing good, from the Republican point of view. The best possible outcome is merely a delay in Garland’s confirmation. Meanwhile, the worst possible outcome is losing the senate and ending up with a 35-year-old version of Bill Brennan. And, ironically, the stalling itself—which was initially intended to preserve some hope of getting a more conservative nominee under a Republican president—has, by tying the GOP to Trump, actually increased the likelihood that Republicans will lose the senate and end up with someone more liberal than Garland.
In short, maybe the GOP senators should rethink their strategy. More and more conservatives are saying judicial appointments are not a good enough reason to support Trump, and more and more Republicans are refusing to support him. For good reason.
Trump has an utter disregard for the rule of law. He has no respect for the First Amendment. He wants to bring back torture, and to ban immigrants based on their religion. He’s eager to bully federal judges over pending cases. He undermines the legitimacy of our democracy by claiming our elections are “rigged.” And just last week he suggested that “Second Amendment people” might be the only ones who can stop a newly-elected President Clinton.
That’s right. Last week the Republican presidential candidate offhandedly hinted that Clinton might be “stopped” by armed rebellion or assassination. Speaker Paul Ryan tried to suggest Trump was just joking. But it should go without saying that this is no joking matter. The Secret Service certainly took it seriously.
Bottom line: Republicans have every reason in the world to distance themselves from Trump. And moving to confirm Garland—now, before the election—is a high-profile, low-cost way for Republicans to distance themselves from Trump.
But they have to act fast, while there’s a window. Trump dropped his horrible hint at assassination while he was talking about Clinton selecting federal judges. If they act quickly, Republicans can step forward, draw the line, and say: “Enough! Clearly we can’t trust Trump to even speak sanely about selecting judges. Obviously we don’t want Clinton to pick liberal judges—but we can’t trust Trump to pick judges either. Trump has demonstrated he’s unfit to be president, so we’re going with Garland. Better to confirm a centrist now than to risk a left-wing liberal under Clinton—or some unpredictable flunky under Trump.”
Voila! This is how Republicans can use Garland to break from Trumpism.
Will they take some heat for reversing course? Sure, from some quarters. But overall it’s a low-cost move because (a) the public supports a vote on Garland; (b) Garland is likely to be confirmed eventually anyway; and (c) even with the flip-flop, Republicans will look better flip-flopping now, in a rejection of Trump, than they’ll look flip-flopping later, in a surrender after losing with him.
And this move has an upside. If Republican senators—especially those at risk of losing in November—reject Trump and call for a vote on Garland, the GOP might just survive some of its down-ticket races and hold on to its senate majority. At the very least, breaking with Trump will improve the GOP’s future electoral prospects in 2018 and 2020. In moving to confirm Garland, Republicans can declare that—unlike Trump—they still believe in the Constitution and the rule of law. They can disavow Trump’s childish, irresponsible behavior and—in contrast—demonstrate they are capable of acting responsibly by filling the Court’s roster before the new term begins.
In short, by using Garland’s confirmation as a mechanism for rejecting Trumpery, Republicans might just stave off disaster.
Or they can keep doing what they’re doing and go down in flames.