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The Supreme Court Gamble That Paid Off Bigly

Republicans have successfully kept President Obama from appointing a ninth member of the Supreme Court, but that’s a short-term win that will have long-term consequences.

By Seth Masket


Visitors walk outside the Supreme Court on February 14th, 2016, in Washington, D.C. (Photo: Drew Angerer/Getty Images)

Senate Majority Leader Mitch McConnell took a risk when he declared last February that the Senate would not consider any appointment by President Barack Obama to replace the recently deceased Antonin Scalia on the Supreme Court. McConnell risked making himself and his party look intransigent and dangerously irresponsible, blinded by hatred of Obama to the point of disabling a branch of government. He risked making voters angry at his party during an election year.

The risk paid off. Near as I can tell, Republicans paid no electoral penalty for this maneuver. Sure, they took some heat from the political media for it, but, like most other issues, it was quickly absorbed into the partisan divide. Conservative media sources claimed it would be inappropriate for a president to name a justice during his final year in office, other outlets noted there was precedent for it, and the Senate majority held fast to its position.

But there was a larger game being played here. McConnell’s move made the Supreme Court seat an issue for the presidential election. It motivated conservatives to stay on board with the Republican presidential nominee no matter who it was.

We can’t know who McConnell thought the presidential nominee was going to be in mid-February, but the nomination of Donald Trump by that point had already moved from a fantasy to a possibility to a probability. He had just won the New Hampshire primary, demonstrating an ability to translate his fame into actual votes and delegates, and more than half the remaining candidates had already dropped out. Marco Rubio and Jeb Bush had underperformed substantially and their candidacies didn’t seem to be long for the world. The risk in nominating Trump, of course, was that he’d alienate half his party through his bombastic behavior, toxic utterances, and unreliable issue stances.

The Supreme Court vacancy changed all that. It informed key constituencies, particularly evangelical Christians, that there was far more on the ballot than Trump. The balance of the Court, particularly on such issues as abortion, was in play. Abandon the nominee, and Hillary Clinton gets to pick the next one, two, or three justices. Stand by the nominee, no matter how repellent, and you get to.

I spoke with Ryan Call, the former chair of the Colorado Republican Party, who explained that this linkage between the Court vacancy and the presidential election helped keep conservatives on board with Trump’s campaign:

This was especially true for evangelicals and other members of communities of faith such as Mormons for whom moral issues and religious liberty is paramount, but was also true for 2nd Amendment supporters and others whose hot-button issues have recently impacted by recent 5/4 Supreme Court decisions. It was also true for other constituencies whose interests are in danger of being negatively impacted by judicial rulings from an ideologically left-leaning Supreme Court. These voters were made to understand that, while the president may only occupy the White House for four or eight years, the make-up of the Supreme Court and the federal judiciary will impact and shape the future of the country for generations.

It’s interesting to contrast the apparent inability of Mitt Romney in 2012 to keep some of these constituencies solidly on the reservation — even though as a candidate Romney was much more aligned in terms of the issues and in terms of his character and qualifications for the presidency. In 2012, a Supreme Court vacancy was merely a hypothetical, whereas in 2016 McConnell’s strategy made the risk of a major ideological shift in the Supreme Court an imminent reality.

We should not understate the magnitude of Republicans’ use of this tactic. This was an unprecedented power grab, and there’s every reason to think the Democrats will respond similarly, either by grinding court nominations to a halt through the filibuster or, should they regain the Senate majority in 2018, allowing no new justices during the remainder of Trump’s term. Indeed, knowing that the Republicans did this when they held the Senate under a Democratic presidency and paid no electoral price for it, Democrats would be self-defeating not to respond in kind. It’s very difficult to de-escalate in a polarized environment like ours.

Should this become the norm, a nine-member court will become a rarity, and interest groups strategizing how to win over the highest court in the land will need to consider not only who is on it, but how many members there are.

This norm violation seems to have paid off for Republicans in the short run. But there will be a long-term price for this maneuver that’s difficult to assess right now.