The Conservative Case for Confirming Garland

Senator Sue Collins (R-ME) is perhaps the most moderate Republican in Congress, so she doesn’t quite speak for her party. However, she made an important strategic point today:

The irony, however, will be if the next president, whoever that may be, ends up nominating a person who is far more liberal than Judge Garland, who is considered to be a centrist.

Collins is right. Chief Judge Merrick Garland is generally considered more centrist than other potential Democratic nominees. He’s also older. At 63, he is the oldest Supreme Court nominee since the 1970s. Because Supreme Court Justices serve for life, an older appointee might not serve as long as a younger one. Fellow D.C. Circuit Judge Sri Srinivasan, a runner-up for this nomination, is 15 years younger than Chief Judge Garland.

Supreme Stakes in the 2016 Election

Senate Republicans say they want to hold the seat open for the next president to fill. If the voters elect another Democratic president in 2016, and especially if they elect a Democratic majority in the Senate, we can probably expect a more liberal nominee next year and, importantly, a younger one who would be expected to serve longer than a Justice Garland.

On top of all of that, let’s remember that the Supreme Court was divided between five conservatives and four liberals until Justice Antonin Scalia’s death. It is now divided four-to-four. Whichever side fills Justice Scalia’s seat will probably win most of the big cases that divide on ideological lines for the foreseeable future. (Let’s remember, though, that most Supreme Court cases are not decided on ideological lines.)

Keeping the White House in Democratic hands also makes it more likely that a Democratic president will choose successors to the aging Justices Ruth Bader Ginsburg (83) and Stephen Breyer (77). Along with the younger liberal Justices Sonia Sotomayor (61) and Elena Kagan (55), Democratic appointees to succeed Ginsburg and Breyer as well as Scalia would keep the Supreme Court in center-left hands for decades.

Betting on Orange

Forget the national interest and the integrity of the judicial branch for a minute; let’s focus on game theory. Blocking the Garland nomination only makes sense if Republicans think they’re going to win the 2016 election.

If Garland is blocked and Republicans win in November, someone more conservative than Garland will be appointed. This is Republicans’ best case scenario. If Garland is blocked and a Democratic president is elected, someone more liberal and younger than Garland will likely be appointed. This is Republicans’ worst case scenario.

With that in mind, put yourself in the shoes of a Republican Senator. If you think your party is going to win the election, it’s in your interest to block Garland. If you think your party is going to lose the election, it’s in your interest to confirm Garland.

Democrats will allege that blocking President Obama’s nominee is an unprecedented politicization of the Supreme Court. This might hurt Republicans’ chances in November — especially Republican Senators with tough reelection battles. Polls show the public is with the Democrats on this. Even if you’re willing to lose the election for the cause of a conservative Court, blocking Garland and losing is worse for that cause than confirming Garland.

But there’s a bigger problem: Donald Trump is very likely to lead the Republican Party this November. Although it’s early and anything could happen, current polling shows him losing to the likely Democratic nominee by a significant margin. Polls also consistently show Trump to be extraordinarily unpopular, with nearly two-thirds of Americans holding a negative opinion of him. Many Republican thought leaders believe Trump will not only lose the presidency, but drag other Republican candidates down with him, making a Democratic Senate likely.

Anything could happen, but the smart money says Republicans are more likely to lose than win in 2016, and that if anything, blocking Garland makes their loss more likely. The conclusion one draws is that they’re better off confirming Garland.

But despite all that, Republicans are sticking to their strategy of blocking (at least for the moment). Why?

The Audacity of Nope

The biggest reason they’re blocking despite the likelihood of a worse outcome is an agency cost. That is to say, a motivator on which Republican Senators’ interests are not aligned with the interests of conservatism. However rational it may be for them to confirm Garland, and whatever price the Republican Party may pay for blocking him, the thing many Republican Senators fear most is a primary challenge from the right. Voting for an Obama nominee who would shift the balance of power on the Supreme Court to the liberals, likely for decades, could hurt a Republican Senator with primary voters, both in their reelections and in any future campaigns for higher office. They don’t want to risk that.

Another is blind optimism. In these polarized times, it’s hard for someone immersed in partisan battles to fully accept the likelihood of one’s party losing the presidency. And it is true that we are early in the cycle and things could eventually start looking up for Trump. But the signs are not good. Republicans are probably going to lose in November, so (as far as anyone knows) they’re better off confirming Garland instead of blocking him.

Finally, there’s the lame duck option. No matter who wins in November, the current Congress and President will continue to serve until January. Republicans could lose in November, then come back to Washington and confirm Garland before the new Congress and new President take office. But they can’t count on this option. If a Democratic president is elected, President Obama might withdraw his nomination and allow the new president to put forth her own nominee (to a bluer Senate), depriving Republicans of this fallback plan. There’s no reason to think he necessarily would do that, but the possibility means Republicans can’t count on this safety net.

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