With his nomination of Judge Merrick Garland to fill Supreme Court Justice Antonin Scalia’s seat, President Barack Obama has made clear the tone he wishes to strike with the nation. He faced a difficult choice: whether to nominate an eminently qualified liberal or an eminently qualified moderate. In opting for the latter, Obama has eschewed the standard Republican strategy of aiming every policy decision at the party’s most extreme faction, and instead sought to nominate a justice whom large swathes of both parties will see as appropriate to the high bench.
Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, is man whose academic, personal, and judicial credentials are such that Senator Orrin Hatch said just last week that the president “could easily name Merrick Garland, who is a fine man” to fill the seat, but “he probably won’t do that because this appointment is about the election, so I’m pretty sure he’ll name someone the [liberal Democratic base] wants.” In what is certain to cause Hatch to shift uncomfortably in his Judiciary Committee seat, Obama did precisely what the senator suggested and nominated an appellate court judge who has been lauded for a measured, non-ideological approach to the law.
Far more interesting, however, than Obama’s opening move is how Republicans will respond. Even before Scalia was buried, Republican Senate leaders announced that they would refuse to consider an Obama nominee. In choosing to strike preemptively, they locked themselves into a strategy that is somewhere between questionable and idiotic, and just may be the coup de grace to their political party, which now seems likely to be led by Donald Trump.
What Republican leaders remain unable to grasp is that they created Trump. The genesis was with Ronald Reagan, who convinced millions of working class Americans to vote against their economic self-interest on the altar of patriotic piety, and then struck them a bargain that Republicans—which, despite all the folksy rhetoric, remains the party of class and wealth—could not keep. The rise of conservative talk radio and Fox News continued to successfully perpetuate the myth that the conservative movement favored the working class and that Democrats were its enemy. With every passing election, the bankruptcy of the Republican strategy became more manifest, but still they were able to deflect blame while their rank-and-file grew more frustrated and angry. Now, in 2016, the strategy has blown up in their faces, and the GOP finds itself on the brink of a presidential nominee so odious that there’s talk of a third-party run by an establishment candidate.
Constitutionally, of course, Republican senators can do anything they like. There is no provision in the Constitution that requires the Senate to ratify or even consider a presidential appointment. But by agreeing to fairly consider Garland, they would announce their intention to help heal the wounds they were instrumental in creating and at the same time distance themselves from Trump and Cruz, both of whom they despise.
On the other hand, if they don’t consider Garland’s nomination, then they are going all in on a Donald Trump or Ted Cruz victory in November, in the hopes of replacing Scalia with an equally or even more conservative judge. That’s a risky bet. If Hillary Clinton prevails, as current polls suggest she will, then Republicans are almost certainly going to have stomach someone more ideologically anathema than the man Obama nominated Wednesday. They might even face a nominee that they loathe and fear over all others: Obama himself.