By Elliot Louthen, contributor
The GOP half of the Judiciary Committee announced earlier this week that they will not engage in any aspect of the nomination process to fill Justice Scalia’s seat. Though this is not entirely surprising — hearings were unlikely from the outset let alone an actual vote on a nominee — it is bewildering to consider the leverage Republicans are leaving on the table. Even more concerning for the average party member, this decision seems like a cleavage between the party’s conservative platform and the party’s political fortunes.
By blocking any Obama nominee, the apparent GOP strategy is to hedge their bets on winning the presidency, thereby ensuring a champion of conservativism fills Scalia’s vacant seat. A major problem with this strategy, however, is that their prospects of taking the White House in 2016 are seemingly growing slimmer and slimmer. Trump’s domination continues, as he most recently steamrolled through Nevada and is the front runner to win the Republican nomination. A Clinton victory in November is far from inevitable, but it is hard to imagine Clinton losing to Trump in a general election. And if Clinton (or heaven forbid for conservatives, Sanders) wins, given the clear voter mandate, the SCOTUS replacement will likely be far more liberal than any pragmatic consideration Obama would otherwise offer if confirmation were the actual goal.
Instead, Democrats have now been granted the opportunity to campaign on a tangible manifestation of GOP obstructionism for the next nine months. Republicans, on the other hand, are betting that voters (particularly independents) will sympathize with the ethos of waiting for the 45th President to decide: conjecture that is in no way guaranteed to garner votes and also predicated on winning the election.
In an election year where losing their Senate majority is a real possibility, this strategy is risky at best and disastrous at worst. In one of the most vulnerable Senate seats, Mark Kirk of Illinois has already publicly declared he would vote on a nominee if offered the opportunity. Despite this effort, one can already foresee the attack ads pinning Kirk to obstructionism. Similar attacks will be made against vulnerable senators across the country.
But what if Republicans took the opposite approach? What if a nominee was actually given a hearing? Or even more strategically (and realistically), what if Senate Republican leadership brokered a deal on a moderate nominee? The current political landscape offers the GOP maximum leverage to secure a moderate on the bench: Obama wants to bolster his legacy and is surely willing to move to the center on a potential nominee if it means confirmation. Why not capitalize on this leverage and position the future of judicial conservativism on a moderate nominee, as opposed to risking it in an election that is looking less and less promising for the GOP, let alone the Republican establishment?
This here represents the divergence of conservativism from the GOP. With names like Sri Srinivasan— a potential justice who was unanimously appointed to the DC Circuit Court and would likely break ranks with the four liberal justices from time to time —and even Nevada GOP Governor Brian Sandoval being tossed around, Republicans have a clear opportunity to push Obama towards the middle by offering a hearing/vote in exchange for a moderate nominee. Is this hypothetical court makeup as ideal to conservativism as the previous bench with Scalia? Of course not. But is adding another moderate justice better than the alternative of adding a surefire liberal to the fold? Absolutely. Kennedy has already demonstrated that and more.
Are Republicans willing to give up their partisan advantage on the Supreme Court — a branch of government that withstands political winds and is just as influential (if not more) than the legislative branch — if it means holding onto their majorities in Congress? The recent Republican response seemed like a clear divergence of ideals and politics to me.
But maybe that’s not the future of the GOP. Maybe the “go big, or go home” mentality isn’t just a virulent fervor personified in an anti-establishment Donald Trump. Maybe it is also the mentality of Republican Party leadership. It sure appears so.