Both The New York Times and The Washington Post make note today of the political risks that Republicans may end be taking if they stick to their position that any nominee selected by President Obama to succeed Justice Antonin Scalia will not be considered until a new President takes office Obviously, the announcement itself, and the move if the Senate ultimately ends up following through on it, is likely to please the Republican base and the pundit class, but given that we’re at the start of an election year in which control of the Senate will be in the balance as much as the Presidency itself Republicans obviously need to worry about doing more than just pleasing their own as this battle goes forward. In the past, the GOP has paid a price in the polls for actions that are perceived to contribute to gridlock such as the 2011 showdown over the debt ceiling and the 2013 government shutdown. For the most part, though, those events took place far enough away from elections that they didn’t really seem to stick in the minds of voters by the time the elections came around, a fact most aptly demonstrated by the 2014 elections just over a year after the shutdown in which voters overwhelmingly handed control over the Senate over the GOP. This time, with the GOP seeking to avoid losing its third Presidential election in a row and its fifth out of seven such elections since 1992 as well as maintain control of a Senate it holds by a relatively narrow majority, Republicans are faced with the possibility of their decision to block whomever the President selects for the high Court being an issue all the way through Election Day and beyond, with Democrats likely reminding voters of how many days it has been since Justice Scalia’s seat has been vacant and the Court issuing 4-4 decisions in important cases as a further reminder.
On the Senate side, Republicans are already facing an uphill battle thanks to their success in the 2010 midterms. Of the 34 Senate seats up in 2014, 6 of them are held by Republicans in states that President Obama won in 2008 and 2012 — Mark Kirk in Illinois, Ron Johnson in Wisconsin, Rob Portman in Ohio, Pat Toomey in Pennsylvania, Kelly Ayotte in New Hampshire, and the open seat currently held by Marco Rubio in Florida. In addition, Republicans are expected to strongly contest the open Senate seat created by Harry Reid’s retirement in Nevada, also a state President Obama won in the last two Presidential elections. As things stand right now. the GOP holds a 54-46 majority in the Senate, which means that Democrats would need to flip at least five of these as well as hold on to Reid’s seat in Nevada in order to gain control of the Senate. Alternatively, they could gain control by flipping five Republican seats and winning the White House, which means they could rely upon the Vice-President’s tie breaking vote to gain control of the Senate even if they are unable to maintain control of Reid’s seat. Right now, polling suggests that the Republican seats in Illinois, Wisconsin, and New Hampshire are the most vulnerable, while Pat Toomey and Rob Portman seem to be polling quite strong in their respective re-election bids and the potential Republican nominees in Florida are at least keeping the race competitive in the Sunshine State. If the public reacts negatively to the Senate’s refusal to bring an Obama Supreme Court nominee to a vote, it could have an impact in these other marginal Senate contests and push the upper house of Congress into the Democratic camp. That risk would arguably be enhanced if the Republican nominee for President ends up being someone like Donald Trump and Ted Cruz, both of whom seem likely to push independent voters into the Democratic camp nationwide.
The risks are similar on the Presidential side regardless of who the Republican nominee ends up being. As I’ve noted before, in order to win the White House, Republicans will need to navigate a difficult path through the Electoral Collage. First, they will need to win every state Mitt Romney did in 2012. While this might seem easy enough, the fact that states such as North Carolina and Indiana fell into Democratic hands as recently as eight years ago suggests that it could be more difficult than it seems if the party loses touch with voters that aren’t part of the Republican base. Second, even assuming they win all of Romney’s states, they will need to win Ohio, Florida, and Virginia, states that they have lost in each of the past three elections. While there are others paths to 270 Electoral Votes, they all involve paths that call for winning states that are far more difficult for Republicans. Finally, even with all those states in their pocket, Republicans will still be four Electoral Votes short, meaning that they’ll need a win in at least one more state, whether its New Hampshire, Iowa, Colorado, or Nevada. With a path to victory that demanding, anything that puts a must-win state at risk would prove fatal to the Presidential bid of any Republican, whether its Donald Trump or John Kasich.
The point in both these examples, obviously, is that if voters react negatively to the GOP’s strategy of denying a vote or any consideration to any Obama Supreme Court nominee, it could end up backfiring on the GOP in November in a way that would not be reparable the way the showdowns in 2011 and 2013 ended up becoming. Republican leaders are, no doubt, aware of these risks, but they are also aware of the risks of defying a Republican base that is looking for a confrontation with the Obama White House and clearly seems to see a fight over the potential successor to the man seen as the intellectual leader of the conservative wing of the Supreme Court as a hill worth dying on. For that reason, it will hard for people like Senate Majority Leader McConnell and Judiciary Committee Chairman Chuck Grassley to back down from the position that they’ve taken now that they’ve taken it, which suggests it may have been a political mistake for them to take a position like this so soon after Justice Scalia’s death was announced.
There is, of course, another alternative. Senate Republicans could decide to go through the motions of considering whomever the President nominates, with the idea being that the nomination would ultimately fail. Under this strategy, the Judiciary Committee could hold its hearings and eventually vote out the nomination, with the nomination possibly even going to the floor even if it receives a majority “No” vote in the committee. This is what ultimately happened to Robert Bork’s nomination in 1987, with the Senate Judiciary Committee rejecting him on a party-line vote but ultimately sending him to the floor. Once the nomination gets to the floor, the Senate could vote on it and, again, reject the nomination on a party-line vote. With the cushion the GOP has in the Senate, there were even be room for a handful of Republicans to vote in favor of the nomination for the sake of their own re-election bids if necessary. This process could be slow-walked through the Senate in a way that, by the time it was over, there would not be any time left on the Senate’s election year shortened calendar to consider a replacement nominee. Whether voters see this as any more legitimate than a complete refusal to consider the nominee is unpredictable, but it’s a fallback strategy that would allow the GOP to say they considered the nominee while still accomplishing the objective of leaving the seat empty until a new President can choose a nominee.
As I said my initial post on this issue yesterday, and in the follow-up, there’s no question that Senate Republicans have the power to deny the President a hearing or vote of any kind on his anticipated Supreme Court nomination. Put simply, there is nothing in the Constitution that requires the Senate to take a vote and certainly nothing that requires them to accept the nomination without question. Ultimately, though, whether or not what they are planning on doing is a good idea will depend on whether or not the voters approve of it. If they don’t, then Republicans could end up paying quite a high price for intransigence that, ultimately, is designed primarily to please an increasingly intransigent Republican base. Perhaps it will all work out for them in the end, or, perhaps, they’ll wake up on the day after Election Day to find that political fortune has worked against them.
