I have no reason to think, more than four months past the death of Antonin Scalia and almost four months away from the November election date, that Senate Republicans are suddenly planning to pull one over on the conservative base and hold a Judiciary Committee hearing—let alone a floor vote—on President Obama’s nominee to replace Scalia on the U.S. Supreme Court, Judge Merrick Garland of the D.C. Circuit. But crazier things have certainly come out of Congress’s upper chamber, so perhaps a friendly reminder is in order.
In the immediate aftermath of Scalia’s death, I explained why there was virtually no upside to Judiciary Committee Chairman Chuck Grassley even holding a hearing on Garland’s nomination:
Quite simply put, there is virtually no upside here except the possibility that the nominee looks so genuinely terrible at the Senate Judiciary Committee hearing so as to preclude the media from pushing the Democrats’ narrative for them that a Committee vote must then take place. In no sane world, though, is that worth the risk of the alternative of a passable hearing. The Democrats and the media would not care about the Republicans’ olive branch—the proverbial goalposts would merely shift.
Grassley and Majority Leader Mitch McConnell, somewhat to my surprise, demonstrated admirable fortitude in those first few months, in withstanding the incessant pleas from our friends on the Left to do something with the Garland nomination. But then Trump all but clinched the nomination—absent a #FreeTheDelegates Cleveland miracle, of course—the night that Ted Cruz dropped out in Indianapolis, and conservative punditry began to diverge a bit. The next morning, Erick opined that Republicans should still not touch Garland, but Leon Wolf took the complete opposite approach.
To be clear, while I consider Trump’s SCOTUS judges list to be exceptionally good, I also consider it to be exceptionally irrelevant for voting purposes. The day he unveiled his much-ballyhooed judges list, I offered at least five reasons why that is the case.
But for purposes of the Senate GOP’s political calculations here, whether or not the orange-hued clown, as president (God help us), actually does follow through by nominating and expending immense political capital pushing a juridical stalwart is itself largely irrelevant. It is irrelevant, quite simply, because there is no chance whatsoever that a President Hillary Clinton would do anything other than nominate ardently progressive, “living constitutionalist” Leftists judges to the Supreme Court.
While I actually think there is much to be said for the argument that a President Trump represents an existentially worse downside risk for the republic than would a President Hillary, there is no credible argument that a President Trump would be worse for the judiciary than would a President Hillary. Even if Trump eschews the Federalist Society’s advice and goes rogue by nominating exceedingly deferential pro-judicial restraint/judicial incrementalist “yes-men” to effectively rubber stamp his would-be authoritarian agenda, such judges would—in the long term, if the republic endures—be far preferable to the left-wing Sonia Sotomayor-style activists that Hillary would assuredly nominate herself.
Finally, there is the reality that there is virtually no chance whatsoever that President Obama would rescind the Garland nomination, post-Hillary victory this November, and allow Hillary the chance to nominate her own judge instead. First, for whatever it is worth, Obama directly said as much when pressed on it point-blank by Fox News’ Chris Wallace, back in early April:
WALLACE: But just to button this up —
WALLACE: Are you saying you will stick with Merrick Garland through the end of your term?
WALLACE: No pulling him after —
OBAMA: Absolutely not.
Perhaps more importantly, those who think that Obama would pull Garland are not properly factoring in the unbelievable lack of decorum such a move would symbolize to a sitting federal judge—let alone a sitting federal judge on the most influential appellate court in the country, and one who happens to share the sitting president’s judicial/constitutional philosophies. It would be far too aggressive and iconoclastic a move, even for a quasi-imperialist like Obama. It would be an incredible slap in the face to Judge Garland, and would likely be perceived as an institutional slap in the face to the judiciary. Lame duck or not, I simply cannot envision a scenario where that actually would happen. So if Hillary beats Trump, then just confirm Garland the next day.
To be clear, none of this changes the calculus for either #NeverTrump or #FreeTheDelegates. But it does matter for the Senate Judiciary Committee’s purposes. No matter how bad Donald Trump is—and to be clear, I am inclined to agree with Ben Shapiro‘s colorful description yesterday that he is somewhere between the spawn of Satan and the anti-Christ—he is still to be trusted on judicial nominations more than is Hillary Clinton.