Republicans are already freaking out that Donald Trump, a snake-oil salesman also peddling hate and xenophobia, is going to be their presidential nominee. Some refuse to endorse; many refuse to vote for him no matter what. Some have reluctantly fallen in line with grudging, confusing, half-hearted endorsements.
And then RedState.com, a reliable mouthpiece of the right, called on Senate Republicans to hold hearings on and confirm Merrick Garland to the Supreme Court. RedState reasoned that with Mr. Trump at the top of the ticket, Republicans will lose the White House and “likely” the Senate in November. Even if Trump won, the conservative website wasn’t sure Trump would give them a conservative nominee. Judge Garland may not be RedState’s ideal, but he’s better than the devil they don’t know.
This is the height of obnoxious intellectual dishonesty: only now are conservatives willing to accept the uber-qualified Garland because they’re worried they may get a young progressive like Goodwin Liu or Barack Obama from President Hillary Clinton. Republicans’ refusal to even schedule hearings on Judge Garland has been a threat to judicial independence, an affront to President Obama’s legitimacy, and textbook example of how Republicans mislead the public away from their real intentions.
Judges should not be agents of politics. But the politicization of Supreme Court and appellate court nominees over the last 50 years has reached its zenith (or nadir, depending on how you look at it) with Republicans throwing a hissy fit because someone to the left of Genghis Khan may replace the late Antonin Scalia. And Republicans’ insistence that they are standing up for the public by holding the line on Garland is both a lie and a flagrant disregard of their Constitutional responsibilities. The public had its say, when it overwhelmingly re-elected President Obama in 2012 to a term that extends through 2016. Senate Republicans’ job is to give “advice and consent,” not to barricade the doors.
As RedState’s about-face proves, Senate Republicans’ views on the Garland nomination have never been about principle or process. They’ve been about politics: they liked Scalia’s politics; they dislike Garland’s. But they dislike Hillary Clinton’s even more. So, what choice do they have?
Therein lies that somewhat satisfying silver lining to this politico-judicial debacle. The Republicans have backed themselves into a corner with their unprincipled, brazen, and unjustifiable stance against Judge Garland.
They could ignore their Constitutional responsibilities and wait until the next president nominates a new judge. But if Hillary Clinton routs Donald Trump in November, and the Democrats ride a wave of anti-Trump sentiment to a Senate majority, that nominee could be a young, progressive darling. At least Garland has a reputation as a centrist, consensus-builder.
Or, Senate Republicans could continue their temper tantrum and hope (a) that Donald Trump wins, (b) that they keep the Senate, and (c) that Trump nominates a rational human being. Three big “if”s.
Or, the Senate could move on Garland’s nomination now, in which case all of this delay would have been for naught.
There really is no way forward other than a Justice Garland or someone Republicans may dislike even more. And that’s a win for the rule of the law.
Official White house photo by Pete Souza.