When Senate Majority Leader Mitch McConnell slammed the door on a Supreme Court replacement before it opened, Washington conventional wisdom coalesced around the expectation that President Obama would nominate a liberal jurist who could excite the Democratic Party base ahead of the upcoming election, then make the Senate’s failure to confirm his selection an issue in the fall. The logic of this approach is obvious. If the Senate isn’t even going to hold hearings on a nominee, then Obama gets a free pick to use however he likes. If his choice is never going to sit on the Supreme Court, why not think big and offer liberals the nominee of their dreams? Wouldn’t the prospect of a Republican Senate refusing to hold hearings on a Harvard-educated African American woman with unimpeachable credentials animate partisan supporters and get them to the polls in November?
How, then, to explain the sight of Merrick Garland standing next to the president in the Rose Garden last week? Aside from being a native of Chicago rather than another New York area judge, he offers nothing in the way of diversity, and at age 63 he is the the oldest appointee in 45 years, effectively a 15-year rental when Obama could have tried to lock in this seat for three decades. Worst of all from a partisan standpoint, he was described in the press as a moderate who, as Politico put it, “repeatedly split with liberal judges during his long career.” That’s not exactly a great phrase for a bumper sticker.
Progressives were quick to react with dismay. Markos Moulitsas, founder of Daily Kos, called the Garland nomination a “missed opportunity” and a misguided attempt to appease Republicans. It’s easy to see why. On the surface, it has echoes of past presidential efforts to negotiate with Republicans, back when Obama still saw himself not as president of a collection of red states and blue states but of the United States, when he appeared to be negotiating with himself over entitlement reform or tax policy before sitting down at the table.
But that’s not what I think is going on here. Rather than opt for a strategy of mass mobilization, he has chosen a strategy of elite division, not so much an attempt to box in Republicans as to split them apart. This nomination isn’t meant for the Democratic rank-and-file; it’s a wedge shoved into a Republican establishment that’s reeling from the effects of a presidential nomination process gone off the rails and a conservative movement on the verge of losing control of the Republican Party. To revisit what we said several weeks ago, Senate Republicans must prevent Obama from making this appointment if they are to protect the political advantages that help neutralize growing demographic challenges and secure conservative policy advances attained during two generations of conservative jurisprudence. Then, the Republican Party has to nominate a loyal conservative who can win the presidential election and hold their Senate majority so they can replace Scalia with someone who has a similar judicial philosophy. Are you starting to see where this is going?
McConnell’s zero-tolerance policy for nominees is designed to satisfy the first condition, and it makes sense in this context. Criticism that the Senate should do its job is easier to tolerate in March than November, and it can be difficult to sustain the confirmation story over eight months if nothing is happening. That’s not the case if there are hearings, and hearings have a way of building pressure for a confirmation vote. But that second condition? Things are not advancing according to the script. It is problematic for Republicans to argue that the next president should be allowed to make this nomination when it looks increasingly like Donald Trump will be their nominee. Trump is toxic with the public and a threat to the conservative movement.
With Merrick Garland, Obama is exploiting these divisions. By nominating someone viewed as moderate, he intensifies the pressure on Republican senators up for re-election in blue and purple states to break with their party and call for hearings or at least meet with the nominee as is customary. It didn’t take long for Rob Portman of Ohio and Kelly Ayotte of New Hampshire to express their openness to meeting Garland, or for Illinois’ Mark Kirk to go so far as to tell his party to “man up” and hold a vote. It will become increasingly difficult for McConnell to withstand this pressure. And then what? Amidst the centrifugal forces pulling apart their party, if Republicans capitulate to Obama they will further alienate a base already deserting its leaders for the orange-coiffed menace, even as vulnerable Republican senators become increasingly determined to defect.
Meanwhile, Republicans are forced to explain to the broader public why an undeniably qualified nominee should be set aside in favor of whomever may emerge from their increasingly topsy-turvy presidential nominating process, where party elites are divided over whether and how to stop a Trump nomination. “Let the American people decide” is a weak rallying cry when the president can toss it aside with the reminder that the people decided in 2012, and a risky one when it draws attention to where the Republican nominating process appears to be going.
The most likely outcome of these cross-pressures is more disarray causing more harm to the Republican Party’s national position. This appears to be Obama’s larger goal. And in the unlikely event that leadership decides its least worst choice is to move toward confirmation? Garland would still move the Court to the left, perhaps substantially. Not that Obama isn’t striving for that outcome, but his strategy suggests larger considerations.
For the price of nominating someone who does not excite his base, Obama has turned up the heat on a Republican Party trying hard to avoid self-immolation, challenging them to find a way forward that does not jeopardize their Senate majority, their base, and their standing with the public ahead of the November election. He can now stand back while they look for a way out of a dilemma of their own making. In this regard, it is a move reminiscent of the second presidential debate in 2012, when Obama let Mitt Romney implode over his false assertion that Obama had not immediately called the Benghazi attack an act of terror, goading Romney to proceed as he talked himself into a dead end. By offering up a reasonable, moderate nominee, Obama has intensified pressure on Republican elites when they can least endure it, putting Mitch McConnell in a position where there is no clear next move and saying, effectively, “Please proceed, senator.”