The next president will enter office with a potentially pivotal Supreme Court seat vacant. It’s an issue that may pale next to such world-historically important questions as Hillary Clinton’s email management, but it’s still very important. If Clinton captures the White House but Republicans retain the Senate, it is extremely likely that the Supreme Court blockade the GOP started in March will persist for four more years. Just as congressional Republicans have reconciled themselves to Donald Trump, they have already convinced themselves that the only principled course is to deny Clinton the ability to nominate anybody to the Supreme Court. The result would be the hobbling of an entire branch of government, which is just one example of how the chaos of Trumpism will live on even if he loses the election on November 8.
There are scenarios in which we could see the confirmation of a ninth justice to fill the seat left vacant by Antonin Scalia’s death. If Trump pulls off an upset victory, it would almost certainly come with a Republican Senate. This would lead to generic Republican nominees being confirmed to the federal courts. Some conservatives have been skeptical that Trump would reliably nominate conservative judges because of his less-than-robust commitment, historically speaking, to social conservatism. But such doubts are almost certainly misplaced. Even if Trump secretly wanted to appoint moderate judges, it’s not clear where he would find them (David Souter, one of the last of his kind, is not going to come out of retirement). And as George W. Bush’s failed nomination of Harriet Miers showed, Senate Republicans would reject any Supreme Court or crucial circuit court nominee who doesn’t have a demonstrable record of conservatism.
Trump filling Scalia’s seat would not transform the Court. Anthony Kennedy would remain the median vote. But if Trump also replaced Kennedy, Ruth Bader Ginsburg, or Stephen Breyer, the Court would quickly produce outcomes that would hurtle American constitutionalism back toward the Gilded Age.
If Hillary Clinton wins and Democrats take the Senate, she will almost certainly be able to get a mainstream liberal nominee confirmed to replace Scalia. As of now, the filibuster power remains in place for Supreme Court nominations. But the Supreme Court filibuster would not survive further Republican obstructionism. Outgoing Senate Minority Leader Harry Reid has made it clear that the filibuster for Supreme Court nominations is dead. Clinton’s ticket-mate Tim Kaine, who could potentially cast the deciding vote for a Supreme Court nomination if the Senate ends up 50-50, has followed suit. The only real question in this scenario is whether Clinton would effectively reward Republican obstructionism by re-nominating Merrick Garland, President Barack Obama’s choice to fill the seat, or take the more desirable course of nominating someone younger and more liberal on civil liberties.
The messy scenario involves a President Hillary Clinton facing off against a Republican Senate. Many pundits assume that point-blank refusing to fill the vacant Supreme Court seat will be politically impossible for Republicans. These pundits are, however, probably wrong. Everything about the way Senate Republicans have operated under the leadership of Majority Leader Mitch McConnell suggests that keeping Scalia’s seat open is exactly what the GOP will do. The GOP’s drift from traditional norms of governance has only been exacerbated by Trump, who has stoked the anti-establishment sentiments roiling the Republican base and made it virtually impossible for Republican legislators to work with Democrats on anything.
Multiple Republican senators and public intellectuals have already come out in favor of a blockade. In some ways, the most instructive comments were made by Senator John McCain’s spokeswoman, after McCain openly declared that Senate Republicans “will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” Following up, McCain’s representative said that McCain would “thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications.”
While these comments have been described as a “walk-back,” if you look carefully they really weren’t. McCain’s office only said he would consider the qualifications of any Clinton nominee; it didn’t say there was any chance he would find any Clinton nominee “qualified.” Indeed, the underlying premise of the blockade is that the entire Democratic Party is unqualified to rule in any way. Responding to Slate writer Jamelle Bouie’s point that Republican Supreme Court obstructionism constitutes “[a]n explicit statement that Democratic presidents are inherently illegitimate,” the anti-Trump conservative Ross Douthat averred, “I think it’s more a statement that current liberal judicial theory is inherently illegitimate.”
On the merits, the idea that Republican objections to Hillary Clinton’s nominees are about “judicial theory” is laughable. To choose just one recent example, a Republican Supreme Court majority eviscerated the most important civil rights statute of the last century with arguments so feeble they scarcely merit being called “constitutional law” at all. The idea that Senate Republicans will only approve judges with a neutral commitment to “strict constructionism,” or whatever other meaningless cliché, doesn’t pass the smell test.
But as a prediction of what Senate Republicans will do, Douthat accurately characterizes the process by which Senate Republicans will convince themselves that they’re not merely permitted, but compelled to reject any of the “judicial activists” Clinton will nominate. What they really care about are substantive policy outcomes, not legal theory, but that doesn’t matter. As a justification, it’s good enough. McConnell’s Republicans have consistently ignored established norms to pursue partisan advantage, and this will be the latest example.
In outright refusing to consider Merrick Garland, the GOP has already obliterated previous norms regarding Supreme Court nominees. The original justification was that the Senate couldn’t do such a polarizing thing in the midst of an election, but the election itself has pushed the GOP to stake out even more extreme positions. The serial obstruction of Hillary Clinton’s nominees is now a virtual inevitability.
On the one hand, the stakes of filling the Supreme Court seat are huge. Even a moderate like Garland would be the most liberal median Supreme Court vote in nearly 50 years. On the other hand, all evidence suggests that the political costs of refusing to fill Scalia’s seat would be negligible. The obstruction of Garland has gotten virtually no attention during the presidential campaign. The general public pays very little attention to the Supreme Court. Legal scholars will fret that the Court won’t be able to efficiently resolve circuit splits, but virtually nobody will change their vote because of it. Republican senators have much more to worry about from primary voters who would be furious at any senator who voted to shift the Court well to the left than from a general electorate that will almost certainly ignore Republican obstructionism yet again.
Most congressional Republicans have embraced Donald Trump, despite his countless disqualifying characteristics, for a simple reason: He’ll sign the legislation that Speaker Paul Ryan and Mitch McConnell put on his desk. When norms get in the way of the political and policy interests of the contemporary Republican Party, so much worse for the norms. The Supreme Court will not be an exception to this growing trend, proof that the cancer of Trumpism won’t be excised from the party even if Trump loses on Election Day.