Barack Obama nominated Merrick Garland to the Supreme Court today, a choice which has both Democrats and Republicans scratching their heads. This is, however, the natural conclusion of a really long strategy that has very little to do with the Supreme Court itself, and everything to do with the other two branches of government.
Mitch McConnell – The Louise
Republican Leader, Mitch McConnell, has previously declared that Barack Obama’s Supreme Court nominee would not get a hearing before the Senate Judiciary Committee, no way, no how. But why not just give the nominee a hearing? If the objective were only to deny Barack Obama’s nominee, Sen. Chuck Grassley, chair of the Committee, knows how to quietly slow-walk a nominee until the clock expires, but instead they’ve decided to make a stand.
That’s a position that only makes sense if the Republicans thought they were poised to keep the Senate and recapture the White House, which seems, at best, a 50-50 shot, given the current likelihood of a Trump/Clinton face-off.
By denying Obama’s nominee a hearing, the Republicans make the Supreme Court nomination an election issue. Republicans, it seems, care a lot about ideological purity on the Supreme Court. Ted Cruz had been trying to inject it into the campaign, even before Antonin Scalia died. With Scalia’s death, this issue isn’t hypothetical anymore, it’s REAL. Like mega-real. The question becomes how does making the Supreme Court nominee a mega-real issue help Mitch McConnell?
I think it’s fair to say that the Republican establishment isn’t too excited about Donald Trump, they’ve started to dog-whistle the idea that there may be a brokered convention. In order to deny Trump the nomination, they need to start to slow his delegate roll. Republican primary voters may not care that Donald Trump has flip-flopped on abortion and gay rights, but they might start to care if that had an impact on his potential Supreme Court nominee. If Republican primary voters start caring about the Supreme Court, they might start to see Donald Trump’s positions in a slightly different light and consolidate around other candidates, thus denying him votes and delegates (this is a long shot). Watch John Kasich and Ted Cruz both start try to use this line in their current campaigns. More acutely, however,if Mitch McConnell can deny Donald Trump as many delegates as possible AND gin up enough Republican anxiety about the Supreme Court there might be pressure at the Republican convention not to nominate Donald Trump.
Republican anxiety about the Supreme Court could manifest in two ways: (1) Actual Republicans concerned about who Donald Trump might pick; and (2) Actual Republicans freaking out because Donald Trump’s candidacy may throw the election to Hillary Clinton who would get to choose, in their minds, a terrifyingly liberal jurist.
Paul Ryan’s recent “I dunno” about accepting the Republican nomination is another dog-whistle in this direction. It’s going to take scheme of Ocean’s Eleven-like proportions to deny both Ted Cruz and Donald Trump the Republican nomination, but the first step is keeping either of them from reaching the delegate threshold. John Kasich is crucial to that endeavor. Without him in the race, it seems unlikely that neither of them would get a majority of delegates. We’re in the phase of the campaign were most of the primaries allocate their delegates are winner-take-most, so it’s going to be important to siphon off as many delegates as possible.
Meanwhile, Mitch McConnell also really cares about the Senate. Many of his incumbents face an uphill reelection. What better way to give his colleagues some much-needed moderate credibility than give them the opportunity to break with their own leadership. Oh look, it’s already started. Those Senators running for reelection can kvetch and cry and rend their clothes about how rancorously partisan things have become all the while knowing that they don’t actually ever have to vote on the nominee.
Is this a long shot? Absolutely, but guess what? There’s no downside. The Republican presidential nominee will be chosen this summer. If Mitch and Friends can’t dislodge Donald Trump and fear that his election will cost them the White House and Senate, they can just go ahead and confirm Barack Obama’s nominee. Those Blue State Republican Senators can pretend they struck a deal for civility and moderation.
If Mitch and Friends CAN usurp the nomination from Donald Trump, they can install someone else who might seem better able to beat Hillary Clinton and not wreak havoc in down ballot elections.
I know what you’re thinking, “But they could still totally lose the White House and Senate even if Paul Ryan is the nominee.” Indeed, they could, but Mitch McConnell will have a much better idea of how likely that is once the general election campaign starts. If it looks like they’re going to lose big in November, they can just go ahead and confirm Barack Obama’s nominee. Those Blue State Republican Senators can pretend they struck a deal for civility and moderation.
As it turns out, this strategy has another upside, it kind of forces Barack Obama to nominate a moderate jurist. I’ll explain why in a moment.
I know a lot of you are still thinking, “but this could totally blow up in their faces,” which is totally true. However, you guys are just thinking about downside risk of this strategy, not the downside risk of not using this strategy. I bet that Mitch McConnell thinks Donald Trump is a much bigger problem for the Republican Party in the near term than Barack Obama’s Supreme Court nominee. In Mitch’s mind Donald Trump’s nomination is more likely to lead to President Clinton and a Democratic Senate, which is even worse than Barack Obama’s moderate Supreme Court pick. He has to do something or he’s guaranteeing a Clinton-appointed liberal jurist.
Voting on Garland’s nomination now basically allows the election to continue on its current trajectory. The Republican establishment is, I believe, really unhappy with the way this election is going. They don’t know if they can spin the Supreme Court nomination into a winning issue (and neither do I), but there’s no reason they shouldn’t try.
Mitch McConnell is Susan Sarandon in the last scene of Thelma & Louise. He’s stuck between the Grand Canyon and Harvey Keitel. Turning back means jail. Racing forward means flying of the edge of a cliff. Spoiler alert: They choose the cliff, and we don’t know if Thelma and Louise die or escape to freedom.
Barack Obama – The Thelma
Liberals are universally bummed out that Barack Obama chose to nominate a moderate, old vanilla white dude to the Supreme Court. Don’t be mad guys, he didn’t really have a choice.
Even before Mitch McConnell announced that they would be stonewalling of his nominee, Barack Obama knew that Republicans would be itching to deny him another Supreme Court pick. Most of the Republican Senate caucus has nothing to gain from approving his pick. In fact, they have everything to gain from trying to make his pick sound like an anti-American ultra-liberal-communist who will tip the balance on the Supreme Court. His only shot at mitigating that effect was to nominate someone who looked (white, male, old) and sounded (long time jurist, past bipartisan support) completely unobjectionable.
That dynamic has only become more prominent given that this is a Presidential election year. President Obama wants the Republicans to completely fall apart. He wants a long miserable nominating process where Trump barely emerges as the nominee, and the party emerges completely disorganized. He can them in that direction by nominating someone like Merrick Garland, who is the human equivalent of a bran muffin. The hope is that Republican obstructionism projects very poorly to Americans just as they’re deciding how to vote.
Merrick Garland is a trap. Barack Obama is trying to tempt Republicans into looking crazy and foolish in the face of this extremely qualified nominee. He probably expects that they’ll never actually vote on it, but as long as the nomination is in place, Barack Obama can keep the story of Republican obstructionism in the news.
That being said, Barack Obama could withdraw the nomination at any time. If things started to look desperately bad for the Republicans, and it looks like Mitch McConnell will allow a vote just to stave off whatever nominee Clinton would put forward, Barack Obama could have Merrick Garland step down. He probably wouldn’t do that, but he could. The worst that can happen for Obama is that his probably more-moderate-than-ideal, but otherwise totally acceptable nominee is confirmed.
Barack Obama is definitely the Geena Davis in our Thelma & Louise metaphor (not just because he’s prettier than Mitch McConnell). He’s in that car with Louise and he’s saying, “Let’s keep going.”
Merrick Garland – The Brad Pitt
Always the Supreme Court bridesmaid, never the bride, Merrick Garland has nothing to lose. Too liberal for a Republican, normally too conservative for a Democrat, he knows he’d never get this chance if the circumstances weren’t so peculiar. In fact, it’s likely he wasn’t even the first choice this time. It wouldn’t be surprising at all if the other candidates on the shortlist said “Thanks, but no thanks.” This nomination is going to be a circus and likely won’t result in his becoming a Supreme Court Justice. Under these circumstances, the only reason to sign up would be if you thought this was your only shot.
Merrick Garland is J.D. (played by a very young Brad Pitt) who is invited to ride along with the ladies because Thelma thinks he’s cute (despite Louise’s protest). He’s sees his chance at a hustle and he takes it. He’s in the right place at the right time, but most importantly he isn’t in the movie for very long.
In case you were wondering, Donald Trump is Harvey Keitel. A man driving everyone to the edge (and maybe beyond).