A Day After the Unthinkable, McConnell Learns Nothing

A view of the Supreme Court from the Capitol PlazaAt first glance, the two biggest political developments of the past six months seem unrelated. First, in February, Senate Republicans refused to consider any Supreme Court nominee, even with eleven months remaining in this president’s term. This appeared to be a continuation of the same old Tea Party extremism that led to multiple debt ceiling showdowns, a government shutdown, the resignation of Speaker of the House John Boehner, and the month-long inability to find his replacement. Then, this week, after a ten-month battle between seventeen candidates, the Republican Party made Donald Trump its de facto presidential nominee. This shocking development seems at first blush like a reversal of the Tea Party phenomenon, which forced the GOP ever rightward in the age of Obama. Trump is not terribly conservative, failing most tests of ideological purity. He is unbowed by the sort of rightwing pressures that have made even the most strident movement conservatives fearful of primary challengers. And when confronted by the tribe’s ideological gatekeepers and deans of Obama hatred, from Roger Ailes to Glenn Beck, Trump has counterpunched rather than yield.

The conclusion that Trump is a break from the recent Republican past thus appears sound at a surface level. And yet, viewing both situations—the conservative demand that Republicans prevent a liberal majority at the Supreme Court and the working-class Republican embrace of a demagogue unburdened by thoughts or ideals—through the eyes of elected and elite Republicans, it becomes clear that these two consequential party decisions are very much of the same origin. Donald Trump’s nomination is a disaster for the Republican Party, and yet for all the “Never Trump” talk, hardly any consequential Republicans bothered to raise a finger against him. Only Mitt Romney made a meaningful go at it, and even then, his efforts amounted to one speech and some fury, signifying nothing but a vote for Ted Cruz in Utah. Terrified of their own voters’ wrath, party leaders from Chuck Grassley to John McCain to Mitch McConnell stayed largely silent, offering no more than garden variety condemnations thrown in occasionally for posterity. In the same vein, the failure to confirm President Obama’s Supreme Court nominee harms Republicans politically without aiding conservative policy and legal goals. So it was striking that on the day after their nightmare became reality, when Donald Trump became the Republican nominee because party leaders were too frightened to stand up to their vocal minority and act in the party’s interest, that Mitch McConnell reaffirmed that he had learned nothing at all. Merrick Garland will not receive a vote.

The analysis is straightforward. Judging purely from an electoral and partisan perspective, Senate Republicans should confirm Judge Garland. Blocking Garland made sense under only one narrow scenario, in a situation that no longer exists. Republicans knew they could block Garland’s ascension to the Supreme Court by sticking together and staying on message. With the presidential election less than a year away, Republicans could plausibly hope that their unprecedented obstructionism would fade to the background of the campaign, limiting the political fallout from their nakedly partisan and wholly unpopular maneuver.  Presented with even odds at retaking the White House next January, Republicans risked facing a more liberal justice than Garland on the level of previous Obama appointees Sonia Sotomayor and Elena Kagan, but they also stood to install an ideological approximation of the extremely conservative Justice Scalia rather than the moderately liberal Garland should they win. With a Cruz, Rubio, Bush, or Kasich presidency, that strongly conservative nominee was a guarantee. And even under a President Clinton, Republicans could fight off the potential for disaster if the gamble failed. Holding the Senate in 2017, or even maintaining a strong minority, would prevent Clinton from appointing a truly radical liberal. There is no doubt that Mitch McConnell considered these factors on February 13th, when hours after Scalia’s death he announced that no Obama appointee would receive a hearing.

Now, however, Donald Trump will be the Republican nominee. In mid-February, it was still plausible for McConnell to believe that this would never come to pass. Yes, Trump had won the New Hampshire primary four days before Scalia’s death and was leading the national polls for his seventh consecutive month. Yet, Trump had underperformed his polling in Iowa, losing the state to Cruz, and had strongly negative favorability ratings among Republicans. It was hardly fantastical to believe that Rubio would win South Carolina or the spate of Southern primaries on Super Tuesday in the weeks ahead. Even as recently as a few weeks ago, on the heels of Cruz’s resounding victory in the Wisconsin primary, McConnell had reason to believe that Trump could be stopped, telling a local television station, “I’m increasingly optimistic that there will actually be a second ballot.”

Today, there are no such illusions. With Cruz and Kasich dropping out of the race following their defeat in Indiana, Trump will be the GOP standard-bearer this fall, likely taking on Hillary Clinton. This brave new world changes the calculus in two ways. First, Trump will be an exceptionally weak general election candidate, meaning that the prospects of Clinton selecting a Garland substitute are exceptionally high. With the proportion of white voters shrinking each election, Trump would have to exceed the already astronomical proportion of white voters Ronald Reagan won in his forty-nine state romp over Walter Mondale in 1984, or else greatly improve among minorities. Yet, even for a party that wins a smaller share of Latinos and Asian-Americans with each passing cycle (not to mention their perpetually dismal performance among African-Americans), Trump threatens to perform even worse among minorities than Mitt Romney or John McCain did. And after a lifetime of well-documented misogyny that has persisted into this campaign, Trump risks losing women voters by historic margins. Indeed, he is almost underwater among Republican women. Add it all up and Trump starts the campaign behind by approximately ten percentage points, with the potential to place previously solid Republican states within the Democrats’ reach.

Many Republican Senators are privately admitting that Trump stands no chance at election. Some have even stated so publicly, with Senator Lindsey Graham tweeting the night of the Indiana primary: “If we nominate Trump, we will get destroyed……and we will deserve it.” Even the ideologues at the Tea Party cheerleading blog Red State have come around to reality, and applied the knowledge that Trump is doomed to the strategy underlying the Garland court fight:

Now that Donald Trump is the nominee, this is not even a close call…Republicans must know that there is absolutely no chance that we will win the White House in 2016 now. They must also know that we are likely to lose the Senate as well. So the choices, essentially, are to confirm Garland and have another bite at the apple in a decade, or watch as President Clinton nominates someone who is radically more leftist and 10-15 years younger, and we are in no position to stop it.

The second way in which the certainty of a Trump nomination should affect Republican intransigence in considering Garland’s nomination is the very nature of Trump’s candidacy itself. Even if Trump somehow defies the odds and wins the presidency, there is no telling whom he might select. As broadcasted by many of Trump’s rival candidates and members of the “Never Trump” conservative intelligentsia throughout 2016, Trump is not a conservative. Nor is he beholden to Republican Party actors or institutions. Once again, Senate leaders are well aware of this complication. Senate Judiciary Chairman Chuck Grassley admitted last week in a radio interview that “If Trump’s elected president, it probably is a little more unknown than if there’s a Cruz elected president. I would have to admit it’s a gamble.” As we are likely to see in the coming months with Trump’s choice of a running mate, he may very well select a heterodox conservative, unacceptable to many Republican-aligned interested groups.

And so, McConnell’s wisest choice is fairly clear. Approve Garland and lock in an older, moderate justice for the next decade or so, thus limiting the potential damage to the conservative cause resulting from Scalia’s death and remove the confirmation issue as a toxic election issue for a half dozen vulnerable Republican Senators. Otherwise, McConnell will risk his Senate majority only for Clinton to pick a more liberal nominee or, in the “best case” scenario, allow an unstable real estate billionaire with a history of liberal positions and frequent flip-flops to determine the Supreme Court’s future. What choice is there?

And yet…McConnell remains unmoved. Through a spokesman, the Republican Senate leader confirmed on the day after Trump’s Indiana triumph: “Republicans continue to believe that the American people should have a voice in this decision and the next president should make the nomination. Despite the White House coordinating with liberal groups and millions of dollars in special-interest ads, no Republican has moved from their principled position.” Vulnerable swing-state Senators are following suit. Despite a tough reelection fight, New Hampshire Senator Kelly Ayotte joined her GOP colleagues in opposing action on Garland’s nomination and has now stated that she will support Trump in November. Wisconsin Senator Ron Johnson has held firm on opposing Garland’s nomination and has said he would even campaign with Trump. These are stances that have Democrats giddy.

If McConnell truly felt empowered to make decisions in his party’s best interests—both in advancing conservative electoral prospects but also implementing a conservative political and legal agenda—he would no doubt take a very different approach. Imagine how much better positioned the Republican Party and conservative goals would be if McConnell could pursue the following strategy: He reverses course and allows Garland a hearing and a vote. He and the vast majority of his caucus praise Garland for his personal qualities but ultimately vote against him according to what they claim is his extreme liberalism. All of those Senators are able to go home and loudly report to their constituents that they fought Garland’s nomination. A small handful of Republican Senators, however, buck the party line (with McConnell’s blessing) and vote for confirmation. Endangered Republicans in swing states such as Pat Toomey of Pennsylvania, Mark Kirk of Illinois, Rob Portman of Ohio, Ayotte, and Johnson, along with more traditional moderates like Susan Collins of Maine, provide sufficient cross-over votes to allow Garland to win confirmation on a narrow majority, and also prevent the damaging charges of extreme partisanship that would otherwise dog them throughout the fall campaign. Following this path, McConnell gets the best Democratic Supreme Court nominee he could have hoped for, prevents the guarantee of a more liberal justice from a President Clinton and a likely Democratic Senate, and prevents political damage to his swing state colleagues up for reelection that would result from continued obstruction.

Perhaps McConnell believes he can confirm Garland during the lame duck session after Clinton is elected, knowing that Obama would likely not withdraw Garland’s nomination under such circumstances for personal and political reasons. True, waiting until after Clinton’s election to confirm Garland would protect McConnell and the other remaining Senate Republicans from the base’s backlash without risking a more ideological liberal replacement. But what a sad commentary on the state of Republican politics accepting such a tradeoff would be. McConnell would rather hurt his chances of retaining his majority and risk his colleagues’ reelection than face the far-right reproach that would result from bowing to political reality.

For that’s what McConnell’s decision to stand pat is really about. McConnell and Grassley surely know the electoral implications of their obstruction and that their decision to gamble the Supreme Court’s future makeup on the presidential election is a losing bet. Nevertheless, they know that attempting to explain these realities to their voters would be futile. GOP-aligned media personalities and interest groups, along with many Republican congressmen themselves in the heat of primary challenges, have sold the story of establishment betrayal for years. Nothing McConnell could say now would be believed by the rank and file or supported and reinforced by the Fox News-talk radio axis. John Boehner was forced into a politically disastrous government shutdown in October 2013 to no benefit, and he was still viewed as a sell-out for eventually brokering a deal to stop the bleeding.

In other words, the McConnell stance on Garland comes from the same dynamic as led to the rise of, tepid response regarding, and ultimate acquiescence to Donald Trump. All along, Trump’s hate-filled rhetoric and embarrassing theatrics were devastating to the Republican brand. More importantly, the possible and now certain Trump nomination was the kind of cataclysmic failure that political parties are designed to prevent. But the Republican Party is no longer organized or coordinated enough to act in its own best interests. McConnell quietly endorsed Trump the day after Indiana, the same day he reaffirmed his commitment to deny Garland’s nomination. McConnell will still be around after Trump has finished laying waste to the GOP’s congressional majorities and presidential prospects, and he intends to stay in the Senate for longer still. Though he opposed Trump, he would not be the one to speak out against him. Though he knows that confirming Garland is the best course for his party, he will not lift a finger to do so. The only lessons learned by Republicans these days are the ones taught by Eric Cantor—the far right House Majority Leader defeated in a primary by an unknown and underfunded opponent who attacked him for being soft on immigration. It’s every Republican for themselves these days, even if the failure to coordinate and push back against the base’s extremism will leave them all defeated in the end. If there was one event, however, that should shake Republicans from this self-inflicted death spiral, it should be the coronation of Donald Trump as the presumptive Republican nominee. Yet the next day, the Garland strategy was unchanged. What will it take for Republicans to learn this lesson?


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