wisdom states that Republicans have every political reason to block
anyone President Obama nominates for the Supreme Court.
who voted for an Obama nominee could face a primary challenge. The
people who care most about judicial battles are ideological base voters,
so swing voters in a general election wouldn’t blame one party over the
other. And if a Republican wins the presidency, then Senate Republicans
would confirm a conservative, while if a Democrat wins, the person’s
nominee would be no different from an Obama nominee. Nothing lost by
But there are reasons to question all of these assumptions.
First, the immediate electoral risk for Republicans is in the general election, not the primary.
There are 21
incumbent Senate Republicans up for re-election in 2016. (Three other
Republican incumbents are retiring from the Senate.) Six of them, five
of which are in “blue” states, are rated as “toss-up” or “lean
Republican” (as opposed to “likely” or “solid” Republican) by the Cook Political Report.
These six –
Sens. Kelly Ayotte (N.H.), Ron Johnson (Wis.), Rob Portman (Ohio), Mark
Kirk (Ill.), Pat Toomey (Pa.), Richard Burr (N.C.) – were all elected to
their first terms in the Tea Party-infused 2010 midterm. This time,
they will be running in a presidential year in which Democratic turnout
will be higher.
Toomey and Burr have primary challengers. But none have gained traction
yet, and the primaries for most are soon – all in March except for
Toomey’s in late April. Any vote on a court nominee would likely come
probably worried the most about a primary challenge is New Hampshire’s
Ayotte; her primary is not until September, the filing deadline is June
and Trump’s presidential primary win showed an unruly anti-establishment
For the other 15
“safe” Republicans up for re-election, several face nominal primary
challenges, 10 of them in June or later. These folks won’t want to take
any unnecessary political risks.
That leaves 30 Republicans who don’t face any immediate electoral pressures.
They may have a reason to worry about future primaries; political scientist Dave Hopkins noted
that longtime Sen. Dick Lugar was ousted in the 2012 primary after
voting for Obama nominees in 2009 and 2010. But those were votes for
nominees that were considered to be “liberal” picks. The political
dynamic around a pick widely deemed to be a centrist would be an
entirely different ballgame.
That brings us to the second assumption: only base voters care about judges.
understandable assumption. It has been true when we’ve had Senate scrums
over lower court judges. It has been true when voices on one side of
the spectrum futilely try to rally opposition to a judge on the other
side. (Contemporaneous polls
showed little public interest in the epic 1991 Clarence Thomas and 1987
Robert Bork battles, not to mention the less-remembered 2005
conservative kneecapping of Harriet Miers.)
But none of those episodes happened in the middle of a presidential election.
The public won’t
tune out of the judicial battle because a presidential election season
is the one time when most people tune in. And no matter who Obama picks,
barring a poor vet and unexpected scandal, Republicans will be on the
losing side of the argument.
Obama is highly
unlikely to pick a left-wing version of a Bork. He would either pick
someone in the “mainstream liberal” mold of Sonia Sotomayor or Elana
Kagan, or he would offer a compromise choice, a centrist swing vote –
perhaps negotiated with some Senate Republicans – putting the Supreme
Court in perfect ideological balance.
Either direction squeezes obstructionist Republicans.
would have a relatively easier time resisting a mainstream liberal, or
more accurately, it would be a bigger risk for individual Republicans to
cross the aisle and vote for a mainstream liberal. That could be used
against a Republican in a primary this year or beyond.
general electorate majority would embrace a mainstream liberal since he
or she would uphold rights that are widely embraced, including abortion rights under Roe v. Wade and equal rights for gay people.
Putting those hot-button social issues on the line for Election Day is
an clear-cut loser for Republicans. Not only would Republicans be more
likely to lose the presidency, they would also be more likely to lose
undisputed non-ideological judge would put Republicans in an even worse
political bind. A nominee showered with praise from the legal
establishment as an eminently qualified straight-shooter would isolate
Republicans as hostages to ideological extremists. They would not be
able to claim that they were protecting the court from a dramatic
ideological shift; they would be exposed as holding out for their own
ideological comrade at the expense of good governance.
And that brings
us to the final assumption: that Republicans lose nothing by holding
out. On the contrary, they could lose everything.
As it stands,
Republicans have the ability to bargain with Obama and win that
compromise pick, ticking the court a half-step leftward into exact
By refusing to
bargain, Republicans weaken their general election prospects for both
the White House and Senate. If Democrats take both, they could install a
young liberal – as well as replace older liberals Ruth Bader Ginsberg
and Stephen Breyer – and create a five-person Court majority that would
rule for a generation.
madness that is the Republican presidential primary, one could see why
the Republican Party’s first instinct is to reflexively obstruct. But
after making a cold calculation, clear-headed Republicans will see that
the logical move is to make a deal.
The only question remains: How many clear-headed Republicans are left in the Senate?
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