Wednesday, November 02, 2016

Republicans know they can't elect a president. That is why they are now talking about blocking judicial appointments.

Senate Republicans have refused to even hold hearings over Obama's appointee for Scalia's seat on the Supreme Court for more than seven months. For most of that time, the Republican line has been that the people should be allowed to decide about the nomination, meaning that the nomination should wait until after the next presidential election. At that point the public would get to vote on who should be appointing Justices, as expressed in their presidential vote. (Never mind that the people already decided who should be making those appointments during the current presidential term when they voted in 2012).

Recently, however, the Republican line has begun to shift. A few weeks ago, John McCain suggested that the Senate should block anyone that Hillary Clinton might appoint to the Supreme Court after she is sworn in. Those comments caused an outcry and McCain walked it back the next day. Or so it seemed. Last week, Ilya Shapiro wrote a piece in The Federalist advocating that Senate Republicans should refuse to confirm all of Clinton's judicial nominees (not just her Supreme Court nominees). The same day Ted Cruz floated the idea of keeping Scalia's Supreme Court seat open indefinitely. North Carolina Senator Richard Burr seems to have signed on to that plan, saying "If Hillary becomes president, I’m going to do everything I can do to make sure that four years from now, we’re still going to have an opening on the Supreme Court" Today, Marco Rubio indicated that he may have signed on to the blockade, saying that he would block any nominee that is not good, but also adding that Hillary Clinton would not nominate anyone good.

(I should note that there is a difference between voting against a nominee that a Senator does not like and refusing to hold any hearing or allow any other senator to vote on the nomination, which is what Mitch McConnell has done since March. Some of the above statements are ambiguous whether the Senator is talking about voting against a nominee, or stopping the nomination process entirely).

To the best of my knowledge, this kind of talk is unprecedented. In the past Senators have at least pretended to have an open mind, making statements about how they would ask the nominees hard questions at the hearing, or consider carefully whether they are really qualified for the job, etc. I do not think Senators have ruled out considering Supreme Court nominees just because they were appointed by a particular president.

The reason why in the past senators did not announced a total blockade of nominees from a president of the opposing party is because each senator knows that eventually his party will get another shot at the presidency. If Republicans block every Clinton nominee, then Democrats are going to feel free to block every nominee of a future president. Anyone who wants their side to ever get their nominee confirmed has got to allow the other side to get some nominees through now and then.

So why the break from tradition now? It could be because the current Republican party is remarkably short-sighted. On this and other issues, it seems that they are not thinking about the long term effects of their actions (e.g. alienating the largest growing minority in the country, forcing a government shut down with no plausible end game, flirting with a default on the debt, etc)

But I have another theory. This could be a tacit acknowledgment that the Republicans chances of capturing the White House in the near future are really bad. Currently, the Republicans are at a real disadvantage whenever there is a high turnout election like presidential elections are, and the electoral map gives the Democrats an inherent advantage each presidential election (i.e. the Blue Wall) Those disadvantages are bound to get worse for the Republicans as demographic trends are decreasing their core voters' share of the electorate while increasing the share of minorities who tend to vote Democratic. The Republicans could try to change the map and make a play for those minorities by catering to their concerns (as the Republican's autopsy report for the 2012 election advised them to do), but this election has pretty clearly demonstrated that the Republican base won't tolerate that. So what that leaves them with is a losing hand in every presidential election for the foreseeable future.

Once you assume that Republicans probably won't recapture the White House, the premise behind compromising on Supreme Court and other judicial appointments evaporates. The growing Republican opposition to letting any Democratic nominees on the court is part of the realization of Republican weakness in the Presidential race.