Just before lunchtime Tuesday, Republicans on the Senate Judiciary Committee announced that, during a closed-door huddle with Majority Leader Mitch McConnell, they had reached a consensus not to hold hearings on any Supreme Court nominee that President Obama might put forward this year. The nominee’s race, religion, gender, ideology, or sexual orientation matters not. This Senate will not consider anyone to fill the robe of the late Antonin Scalia before a new president takes office.
To which the only response is, “Well, duh.”
It’s not as though McConnell had sent mixed signals about his plan to blockade any Obama nominee. The majority leader declared as much before most people even knew that Scalia had shuffled off his mortal coil. And despite the howls of outrage and charges of obstructionism this elicited from Democrats, not to mention a wave of media stories positing the heartburn it would cause Republican members up for reelection in not-so-red states, there was no way McConnell was going to reverse course. Because, whatever blowback his team may face for this particular episode of gridlock (and Democrats are determined to blow as hard as they can), it is still less politically fraught than allowing the confirmation train to leave the station and start down the tracks.
McConnell being McConnell, it’s safe to assume he thought through the implications of an election-year SCOTUS vacancy long before the actuality arose. (The fact that it is conservative legend Scalia being replaced only raises the stakes.) And, as a purely political matter—setting aside questions of constitutional intent, precedent, or propriety—blanket refusal to consider any nominee was probably McConnell’s best card to play. As Larry Sabato, head of the University of Virginia Center for Politics, notes, the alternative was a full-blown confirmation battle, in which individual GOP members would have needed to take positions, and ultimately cast votes, on a flesh-and-blood nominee. “McConnell recognized, This can only divide us—‘us’ being Republicans,” says Sabato.
By contrast, continues Sabato, channeling his inner McConnell, “If I rule out hearings, the right is happy for once, the outside groups are thrilled, and I can always permit individual senators like Susan Collins or [Mark] Kirk or people who are up in blue states and purple states to say they disagree with me.” (This is, in fact, what Kirk and Collins have done.)
But even for members not facing reelection, there are advantages to taking a vote off the table while it is still merely hypothetical.
“People have no idea who Obama will pick,” says Sabato. “Suppose the individual chosen becomes a cult hero, becomes very popular. Having Senate hearings will probably only highlight that and help them become a cultural icon. You reduce or eliminate part of that by eliminating hearings.”
Trudging into the weeds of identity politics, imagine that Obama taps, as The New York Times recently suggested he might, a “barrier-breaking nominee” such as Attorney General Loretta Lynch, who would be the first black woman on the Court. Sure, refusing to hold hearings on Lynch under the current circumstances would earn McConnell and Co. considerable abuse. But think of how much worse things could get if Republicans waited until after Lynch was nominated before making clear that they had no intention of confirming her.
Far better to short-circuit the entire process right now and be labeled garden-variety obstructionists than to let a nominee surface and be labeled racist/sexist/anti-whatever obstructionists. “You do it before you have any idea who the president will pick,” says Sabato. “Then McConnell says, I had no idea who this would be! I just said it would be bad practice—just as Vice President Biden did in 1992—for the president to force a Supreme Court nominee of any kind down the throats of senators in an election year. Period.”
Sabato’s Biden citation is in reference to the awkward assist-from-the-past that the V.P. has given McConnell. Since Monday, Republicans have been gleefully flogging a 1992 C-SPAN clip of then-Senate Judiciary Committee Chairman Biden ruminating on the possibility of a High Court vacancy: “President Bush should consider following the practice of a majority of his predecessors and not—and not—name a nominee until after the November election is completed.” Biden also suggested that, if Bush were to send up a name, the Judiciary Committee should “seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Biden’s office has insisted that his remarks are being taken out of context. Even so, an interview from that same period in The Washington Post has also surfaced, in which Biden offers the same take, along with his elaboration on how, in the “supercharged” environment of a presidential race, “there would be no bounds of propriety that would exist on either side” and that any nominee, no matter how qualified, “would become a victim.”
Whatever the context in which Biden voiced these sentiments, Republicans are now having fun twisting the knife. Current Judiciary Chairman Chuck Grassley is going around quoting what he calls “the Biden rules” in response to suggestions that his committee is abdicating its duty.
And ultimately, it’s not clear how upset voters will be about the Senate’s refusal to act. Polls suggest that people do have a preference, though one not as strong as you might expect. Of five national polls taken on whether Obama or his successor should appoint Scalia’s replacement, three found that a majority favor Obama (Fox News with 62 percent, Pew at 56 percent, and Reuters/IPSO with 54 percent), while two have the electorate pretty evenly split (CBS News with 47 percent saying Obama should nominate versus 46 percent favoring his successor, and NBC/Wall Street Journal with 43 percent for Obama and 42 percent for his successor). And as with so much polling, there’s little way to gauge the intensity of people’s commitment to these positions—much less what that intensity will be nine months from now.
Which speaks to another upside to McConnell’s strategy. By shutting down the confirmation battle before it begins, he can take most of the incoming fire himself, and he can take it sooner rather than later. If the confirmation process were allowed to grind on, senators could be squabbling over a nominee for months, with some of the more rabble-rousing presidential contenders adding to the chaos and trashing any lawmaker they deemed insufficiently tough on Obama’s choice.
“McConnell did everybody a huge favor by taking the position he did,” says longtime GOP strategist John Feehery, the president of QGA Public Affairs. “It shut off any nonsense from Ted Cruz,” Feehery explains, “and it lowered expectations that this would be the fight for the year. It also makes it more difficult for conservatives to sit out this election, giving the party more leeway in selecting a winning ticket in July.”
As for the broader charge of obstructionism: Voters may love to hate gridlock, says Sabato, but “that’s not how they vote in individual Senate races.”
More precisely, voters don’t hate gridlock enough to stop voting for it. Which is the point former Representative Barney Frank caustically made in a November Politico piece titled “How Voters Cause Washington’s Gridlock.” In it, Frank charges, “The electorate as a whole has established the basis for gridlock by its biennial display of schizophrenia,” by which he means the recent electoral trend of voting in Democrats in presidential election years and Republicans in the midterms. You can’t blame this merely on the hard-core partisans who dominate the primaries, says Frank, but also on the lukewarm voters who don’t bother turning out for elections that don’t excite them. Thus the constant power shifts and chronic gridlock.
In kicking off the Senate’s debate on the issue Monday, Democratic leader Harry Reid accused his Republican colleagues of “an unprecedented attempt to hold hostage an entire branch of government.” McConnell and his conference can expect more of the same in the coming weeks—and worse once Obama actually announces his nominee.
But McConnell is accustomed to the heat and, not facing reelection himself for another four years, more than willing to take the brunt of this attack for his conference.
Question if you must the majority leader’s ethics, ideology, or even the manner and countenance that have earned him the nickname “The Turtle.” But do not doubt the man’s political savvy. McConnell knows how the game is played, and he recognizes the best of a bad batch of options when he sees it.