Normally Combat! blog does not stoop to publishing on federal holidays, and today our great nation honors its longest-armed and woodiest-toothed presidents. But this weekend was so exciting that one must remark. On Saturday, the Republican candidates tore into one another like a sack of weasels, raising the question of which one of these men, exactly, could lead his party through its most fractious historical moment since the Grant administration. Will Trump unite monied interests, neoconservative hawks and alienated tea party voters with his platform of turning red and calling people losers? Maybe the GOP will rally behind Ted Cruz, the most hated man in the Senate. Your fallback option to heal the party is Marco Rubio, who would like to dispense once and for all with this idea that Obama SYNTAX ERR 403 REBOOT? Y/N. Meanwhile, Jeb is betting on the overwhelming popularity of his brother. The question of who might win this contest of undesirables seemed academic until Saturday, when Antonin Scalia was found dead at a west Texas resort.
Scalia was among the most conservative justices in recent memory. His originalist readings of the Constitution influenced many of the contemporary court’s most controversial 5-4 decisions, including Citizens United v. FEC and Burwell v. Hobby Lobby, and his dissent in Obergefell v. Hodges called SCOTUS a “threat to American democracy.” He’s in heaven now, and the original intent of the framers of the Constitution might seem to be that the president would replace him.
But Senate Majority Leader Mitch McConnell (R-KY) knows better. On Sunday morning, he announced that the Republican caucus would block any nominees to the Supreme Court until Obama leaves office. In the short term, that means a lot of 4-4 deadlocks, which will uphold the decisions of the comparably more liberal lower courts. That temporary retrenchment will be worth it, though, when a Republican becomes president in January.
Here lies the only possible flaw in McConnell’s plan. It presumes the Republican nominee will win, and for my assessment of that I direct you to the first paragraph. It also presumes the GOP will retain control of the Senate, which seems like more of a gamble when you consider that Republicans are likely to go to the polls in November holding their noses, if they turn out at all. The most interesting aspect of McConnell’s plan is that although it relies on a Republican sweep in November, it also makes that outcome less likely.
Insofar as voters pay attention to Supreme Court nominations that don’t involve pubic hair, nine months of open obstruction in the Senate is going to hurt the Republican brand. Maybe no one will care. But now that McConnell has publicly declared his intent to obstruct anyone, President Obama can choose whatever nominees make that strategy the most punishing. If the Democratic nominee needs the party to look progressive, he can pick liberal justices because he knows they don’t stand a chance anyway. Should obstruction prove unpopular, he can start submitting moderate picks to make it seem more outrageous.
The president is free to do whatever makes Republicans look worst, because McConnell has declared all his moves in advance. He has committed to both an outcome (Republicans win in November) and a means of pursuing it, but his gamble will still take almost a year to play out. It’s an all-or-nothing strategy that maximizes his opponents’ flexibility, and that’s only wise when victory is assured. I’m not sure this is the year for the Republican Party to play like that. McConnell has bet on success when it seems least likely. As of this weekend, 2016 is the year the GOP either gets well or gets very, very sick.