Cape Coral FL, March 16, 2016

The Republican majority in the United States Senate should confirm the nomination of Judge Merrick Brian Garland to the Supreme Court. Not because of the name, although for some reason I find it appealing. I set out the smart move for Obama here on February 29 in  Replacing Scalia.

“President Obama can and should make a nomination. What he must decide is whether he wants submit an unconfirmable strong liberal nomination that would “fire up his base” or would rather nominate a demonstrably moderate justice to tempt the Senate majority or at least make the strongest case possible against Republican Senate candidates that their unwillingness even to provide a hearing is unreasonable. … What President Obama should do is find a nominee who has been on the Circuit Court for at least ten years with an established record as a moderate – not a stealth candidate…. To increase the chance of confirmation, the nominee should be over 60, reducing the stakes on both sides. While not Obama’s first preference, such a candidate would, from his ideological point of view, be a great improvement over the conservative Scalia.”

I don’t think he follows the MonkfishOnCape blog, but President Obama has cleverly followed that course. I also offered some advice to the Senate Republicans, which they, the Majority Leader at least, seem less inclined to follow:

            “From their point of view, the Republicans should remain firm in their intransigence at least until a specific person is named. If the nominee is not a proven moderate, they may simply continue on the same course.

            If he were quite certain the Senate will not act on his nominee, Obama could nominate someone perhaps distasteful to his base but so eminently moderate that the Senate’s denial of consideration would look foolish… It is not impossible that January of 2017 could bring a Democratic President and Senate and Republicans regretting their failure to confirm this years’ nominee. Even a Republican President Trump would be unreliable on the subject.

            Prudence requires that the Republicans, at least privately, reconsider their position when a nomination is made.”

That situation has arisen and Senate Majority Leader Mitch McConnell has risen to Obama’s bait. The Senate, he says, will continue to refuse to consider the nomination as a matter of principle – the “Biden Rule,” he calls it now – that no nomination should be considered in an election year until the “voice of the people” has been heard.

Justice Scalia, the Originalist, would have been horrified. The Founders went to great lengths to keep populism away from direct involvement in the selection of a justice. Hence, a justice is nominated by a President, elected for a four year term, by electors, themselves “appoint[ed], in such Manner as the Legislature thereof may direct,” and then appointed only “with the advice and consent” of Senators, themselves elected for six year terms by the state legislatures.

McConnell’s action embodies the Republican conduct of the Congress, “our way or the highway.” Obama has usually played into this by following the same policy, turning to executive orders or administrative agency overreach, to achieve his policy goals.

The selection of the Supreme Court justice is an exercise in raw power and judgment – take what is offered or hold out for Door number two. Whether to confirm the Garland appointment requires an analysis of the likely outcome of the presidential election.

Since I wrote on February 29, Super Tuesday and other primaries have clarified the election probabilities. The Republican position is similar to Emperor Hirohito’s assessment on the day he surrendered and ended World War II. “The war situation has developed not necessarily to Japan’s advantage.” The presidential election is developing not necessarily to the Republican’s advantage.

Nothing is certain in an election year, least of all this one, but two things seem highly likely. Donald Trump is going to get the Republican nomination and the Republicans are going to be beaten in the general election.

I defer to no one in my admiration of the late Justice Scalia as I expressed in my February 22 appreciation, Justice Scalia – An American Originalist . Conservatives will not be satisfied with any replacement of Justice Scalia they are likely to get. The Democrats’ argument that the Senate has some kind of Constitutional obligation to give formal consideration to the nomination is just plain silly. Senate Republicans do have a political duty, however, not to be stupid. The decision to be made now is whether a Justice Garland will be better than a nomination by President Hillary Clinton, left to her own devices at the beginning of a four year term.

Judge Garland worked in the Justice Department under the first President Bush. He is moderate, even conservative on criminal law issues. He is more liberal on economic and environmental issues and will move the court to the left on those most important subjects. I still think he’s the best conservatives can hope to get from this President.

President Obama has performed his Constitutional duty as a President in a divided government. That is, to take into account the sensibilities of the other party with a compromise. Judge Garland is not his personal first choice of a justice. Whether the President is acting sincerely or in a cynical effort to trap the Republicans, he has performed well.

Now it’s up to the Republicans. Watch for some of them to begin to peel off from McConnell’s former united front.