Monday, February 15, 2016

Mitch McConnell Knows What He's Doing

Within hours of the news that Supreme Court Justice Antonin Scalia had died, Senate Majority Leader Mitch McConnell released a statement in which he asserted that "this vacancy should not be filled until we have a new President" because "the American people should have a voice in the selection of their new Supreme Court Justice." The political world has been consumed ever since with a debate over this claim, with dueling citations of applicable norms, constitutional provisions, and historical precedents flying back and forth over the Internet.

Some observers—not just liberals—have expressed surprise over McConnell's statement itself. Why, they ask, would McConnell publicly commit to such a strong position immediately after the Court vacancy appeared? Doesn't it open him up to the charge of engaging in partisan obstruction in violation of constitutional expectations? Even if he did wish to block Obama's selection, wouldn't it be smarter to wait until Obama made a nomination and base the case for opposition on a perceived flaw in the nominee?

My own conclusion is that McConnell's actions are quite rational, and probably the smart move. Here's why:

1. Democrats have been warning for 20 years or so that voters would punish congressional Republicans for their obstructionist ways. Yet the Republican Party stands today with a decided majority in both houses of Congress, having gained a net 13 Senate seats and 69 House seats since the start of the Obama presidency. House Republicans have not held this many seats since the 1920s. If you were advising McConnell, what evidence would you cite in order to argue that he was taking a big risk here?

2. It's rhetorically easier to fight over a principle than a person. McConnell doesn't want to get bogged down in a debate over the qualifications of individual candidates if he can hold to a more general position in opposition to the entire idea of a nominee in the first place.

3. If the Senate rejects a nominee based on a personal deficiency, Obama can counter by naming a replacement nominee who lacks that deficiency. The underlying obstructive impulse is actually exposed more by shooting down a diverse series of individual candidates than by holding to a single blanket objection to the process itself.

4. The Supreme Court is a sore spot for many conservatives, who complain about the insufficient conservatism even of previous Republican nominees like Souter, Kennedy, and Roberts. No justice nominated by Obama will be acceptable to the Republican base by definition. Why wait for months to assure conservatives that you will block a nomination when you can do it right away?

5. A "we'll reserve judgment until the hearings" approach would also predictably arise as an issue in the presidential nomination race, to the detriment of the Senate Republicans. Imagine Ted Cruz productively blasting away at McConnell on the campaign trail for failing to vow that any Obama nomination is unacceptable. It is likely that McConnell is not terribly interested in helping Cruz win the Republican nomination.

6. Most Republican senators are more worried about losing a primary election than a general election, and their behavior is understandable given these electoral incentives. Six-term incumbent Richard Lugar of Indiana lost a Republican primary by 20 points in 2012 after supporting both of Obama's previous Court nominees—even though they had occurred years before and did not change the ideological balance of the Court.

7. Democrats warn that a blockade of Obama's nominee will boost enthusiasm and turnout among Democrats in the next election. I'm skeptical that marginally participatory voters care that much about the Court, but even if they do, the issue works on both sides. Republicans will be equally—and perhaps more—motivated to protect the Court's conservative majority as Democrats will be to overturn it.

8. Might McConnell's move hurt vulnerable Republican Senate incumbents running for re-election this fall in purple or light-blue states? Perhaps—though I'm skeptical, and several such senators (Ayotte, Johnson, Toomey) have already endorsed his position—but even if they are, they can announce their support for a vote after winning their primaries.

We're likely to have an eight-member Court for a while. At the least, the Senate blockade is almost certain to hold through November, and a partisan split between the presidency and Senate majority in the 2016 general election will prolong the standoff even further. Republicans may be taking on some political risk with their hardball tactics, but that must be weighed against the risk faced by a Republican senator who provides a decisive vote in favor of a liberal majority on the Supreme Court. In the current GOP, such an act is tantamount to throwing one's career away.