Following the example of every other President since George Washington, President Obama has nominated a candidate to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia. The Senate majority, in an unprecedented move, are declining to either schedule hearings (a relatively new part of the nomination process, only dating to the early part of the 20th Century) or allow the nomination to be brought up to the floor for a debate. While there have been times that the Senate has voted down a nominee or the President has withdrawn a nominee based on objections to that individual that made it likely that the nomination would fail (or that there were not enough votes for cloture). How this conflict plays out over the next six months depends, in part, on events outside of the control of the Senate and the White House. In particular, it depends on whether it seems like the vacancy is becoming an election issue and the perceived likely outcome of the election (which is not the same thing as what will ultimately happen in November).
In naming Merrick Garland, President Obama has laid down the gauntlet for Republicans. In twenty years on the federal bench, Judge Garland has tended to be an inoffensive, slightly left-of-center, moderate judge. For the last two vacancies, many Republicans have in their “advise” role, suggested that they would have looked favorably if President Obama had nominated Judge Garland. Additionally, Judge Garland has a good record of being upheld by the Supreme Court and favorable comments on his judicial skills from no less than Chief Justice Roberts. Other than the issues that would come into play with any Democratic nominee, the Republicans do not currently have any smoking gun that would allow them to justify voting against Judge Garland on the merits.
That leaves Republicans with the somewhat novel proposition that a President should not be able to fill a vacancy in an election year. While some Democrats have made similar suggestions in the past, those suggestions were always in response to hypothetical questions. The Democrats have never declined to hold hearings and debate any Supreme Court nominee. Declining to go forward now would set a new rule of practice going forward. If mid-March of an election year is too late, what about January, what about December of the previous cycle. In the past 40 years, the latest nominee was Justice Kennedy in November of the year before the election.
The unprecedented nature of the Republican’s proposed course of action is already showing up in polls in which a solid majority take the position that the Senate should act. President Obama is certainly planning a PR campaign to increase the heat under Republican Senators from swing states. How much that will work will depend on several factors — all of which relate to whether the public opinion on how the Senate should proceed turns into an issue that might swing voters.
The first factor is what happens at the Supreme Court itself. The math of the Supreme Court turns around having nine justices. It takes five justices to issue a stay while an appeal is pending. It takes five justices to issue a binding precedent. It takes five justices to agree on the judgment in a case (which side wins). It takes four justices to agree to take a discretionary appeal (and most appeals are discretionary). The Supreme Court does have traditions for handling a vacancy, and it is those traditions that could start to make clear how much the court needs a full bench.
The most significant of these traditions is that — when three justices are inclined to take a case — the Supreme Court will hold a case until the vacancy is filled to see if the new justice will provide the fourth vote. There are always some holds — mostly to wait for an application in a similar case to arrive so that the justices can decide which case more clearly presents the issue on which review is sought or because there is a case already set for argument which will resolve the issue. How many cases get holds (and the significance of those cases to the public) could impact how seriously voters view the Senate’s inaction.
The other significant impact from the court will be how the justices act on cases that are divided 4-4 (or 4-3 in the handful of cases in which there is a recusal). On a 4-4 tie, the justices have three options. First, the justices can work out some type of “compromise” that minimally satisfies the issue before the justices but kicks the main issue down the road until a new case can come up. (My hunch is that this is the most likely result on the contraceptive mandate, affirmative action, and abortion cases.). Second, the Supreme Court can “affirm by an equally divided vote” that leaves the lower court decision intact, but does not set any precedent. Third, the Supreme Court could schedule the case for re-argument. Again, the number of these cases and their significance will help frame the debate as we reach the end of June. If the Supreme Court has only agreed to take 20 new cases for the fall and have 15 old cases that will need to be reargued in 2017 and 30 cases on hold, the need to quickly fill the vacancy will become much clearer. At that point, the failure to act on this nomination (while not enough of a swing factor by itself) could help crystallize a view of the Republican Party as being the party of obstruction (rather than the Republican preferred image of simply fighting for a different, but never described, solution).
There are also the political winds. As time passes, filing will close in many states. Senators who are currently taking a “no hearing” position may change their minds when it is clear that they will not have primary opposition (or win their primaries) and turn their focus to the general election. Additionally, the likely result of the general election will come into focus. If the Republican nomination fight is looking like a deadlocked convention or the cross-tabs on the general election show that Latinos will vote for Clinton by a 4-1 margin over Donald Trump with a high degree of enthusiasm among Latino voters, Republicans might decide that they are not going to be in any better shape in November 2016 or February 2017 than they are now. In that case, the blockade of the nomination will cease.
On this last issue, there has been some suggestions by sources on the right and the left that Republicans might opt to wait to November and decide what to do on the nomination then. It would be nice if President Obama would make clear that waiting until November is not an option. It should be made clear that if Republicans do not schedule a hearing by a date certain, that the President would give serious consideration to withdrawing the nomination. Particularly, in light of the Republican position that the new President should make the nomination, President Obama should make clear that — if Judge Garland is not confirmed before the new Supreme Court Term begins in October — he would feel duty bound to consult with the President-elect on whether to let the nomination proceed. (Some Republicans are also trying to squelch talk of the possibility of considering the nomination in November, realizing that the optics of that suggestion are very, very bad. “Heads, I win; tails, you lose” strikes many people as fundamentally unfair.