The Senate Republican majority is in trouble. On Monday, the Huffington Post reported that its model gave the Democrats a 78 percent chance of winning at least 50 seats in the upcoming election—which would give them the majority in the likely event of a Hillary Clinton presidency. The woes of some of these GOP senators can be summed up in two words: Donald Trump. The flailing, failing Republican presidential nominee is seriously damaging these purple-state Republicans, tainting their own re-election bids with the stench of Trump’s foul temperament and racist nativism. Moderates locked in tight re-election battles could soon be searching for ways to disavow their party’s standard-bearer without abandoning their party altogether. And those eyeing elections down the road may finally begin to understand that an association with the Trump catastrophe could sully them for life.
So far, this quandary has produced little more than a lot of hand-wringing and word games from more mainstream candidates such as Sen. John McCain who have disavowed some of Trump’s worst comments without actually disavowing the candidate himself. There’s one obvious, practical, low-risk way at-risk Senate Republicans could distance themselves from Trump and the extremist, obstructionist GOP brand he has come to represent: Push for hearings on President Barack Obama’s Supreme Court nominee, Judge Merrick Garland.
Why would endorsing a hearing for Garland partition moderate senators from their nominee? Simple: The lone, logical reason to support Trump at this late date—for those who haven’t embraced his policy agenda of nativism and bigotry—is the Supreme Court. Trump’s more intelligent and hesitant boosters harp obsessively about Trump’s opportunity to replace the late Justice Antonin Scalia. Conservative pundit Hugh Hewitt captured this view best in a Washington Examiner piece titled “It’s the Supreme Court, Stupid.” Senate Majority Leader Mitch McConnell, mastermind of the Garland blockade, routinely dodges questions about Trump’s fitness to serve as commander-in-chief. Yet he often declares that he wants Trump to win so that he can have the “honor” of filling the Scalia seat.
This view—that loyal Republicans must support Trump to ensure that he can appoint a new justice—has been vigorously contested by conservative intellectuals in recent weeks. Last Tuesday, John Yoo, who authored the infamous “torture memos” while serving in George W. Bush’s Office of Legal Counsel, asserted that “the Supreme Court is not enough.” Yoo, in a Los Angeles Times op-ed co-authored with conservative law professor Jeremy Rabkin, scolded conservatives for “indulging delusions about a Trump presidency” by “fantasizing” about the Supreme Court. Trump, Yoo and Rabkin argued, is unlikely to appoint a consistent conservative to the court—and even if he did, the collateral damage inflicted by his presidency wouldn’t justify the trade-off. Republican pundits such as Ben Shapiro and David Frum have agreed with this assessment, as have respected conservative academics such as Jonathan Adler, Alan Gura, and Orin Kerr.
Trump isn’t worried about these defections; he appears confident that the GOP, from leaders down to the rank and file, will swallow their distaste for their nominee in order to preserve the court. “Even if people don’t like me, they have to vote for me. They have no choice,” Trump said in August. “Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me. You know why? Justices of the Supreme Court.”
Purple-state Republican senators could prove Trump wrong by urging the Senate to remove the leverage Trump currently holds over reluctant conservative voters. In so doing, they would not only give themselves an excuse to break from Trump, but also acknowledge that Obama has a legitimate claim to at least have hearings for his nominee—a position held by the vast majority of voters. Because of McConnell’s obstinate opposition to hearings, these noises likely would not result in Garland actually getting those hearings, nonetheless getting confirmed. Taking a stand, in other words, probably won’t produce tangible results, diminishing the risk of an attack from future far-right primary opponents. And if Clinton wins the presidency and appoints someone younger and more liberal than Garland, these senators can turn to their fellow conservatives and say, “See, we tried to save you from Justice Ketanji Brown Jackson, but you wouldn’t listen.” The move is all upside.
So far, just two Senate Republicans have endorsed hearings for Garland: Mark Kirk of Illinois (who is facing re-election) and Susan Collins of Maine (who isn’t). Not by coincidence, Kirk and Collins are also the only two sitting GOP senators to explicitly reject Trump. Kirk jumped ship once it became clear that Trump was an albatross who could drag down his shaky re-election campaign; Collins presumably understood that her carefully honed image as a Maine moderate could be shattered by a connection to Trump. (Also not a coincidence: They both represent blue states.)
This club of two, however, appears possible to swell in size quite soon. New Hampshire’s Kelly Ayotte, who is voting for Trump but not endorsing him, cannot escape from Trump’s shadow: Her Democratic rival, Maggie Hassan, has tethered Ayotte to Trump at every turn, imperiling her tenuous re-election bid. Roll Call labeled North Carolina Republican Sen. Richard Burr one of the “canaries in the collapsing Trump coal mine”; Burr initially encouraged his party to rally around Trump but has begun to distance himself from the candidate as his poll numbers drop. Pennsylvania Republican Sen. Pat Toomey, who fell behind his Democratic competitor in the polls this summer, is finally discovering that his tepid support for Trump may be a general election liability. Toomey has now gone from calling Trump “unique” to calling his remarks “disturbing.”
Then there are the would-be shoo-ins whose re-election campaigns have been unexpectedly complicated by Trump’s chicanery. Arizona’s John McCain, Ohio’s Rob Portman, and Missouri’s Roy Blunt have all seen their sizable leads shrink to uncomfortably slim margins—a decline that largely coincided with Trump’s ascension to the top of the GOP. All three men have criticized Trump and his proposals, McCain especially; all three have also endorsed him. Democrats have wielded these endorsements as a cudgel in an effort to drive away independent voters—quite effectively, as this month’s polling indicates.
As races tighten further in the election’s home stretch (and senators such as McCain get past conservative challenges in their own primaries), increasingly desperate candidates will need a general election lifeline. Ayotte, Toomey, and Burr may soon find it necessary to jettison Trump altogether; McCain, Portman, and Blunt might not be far behind. But how can these candidates ditch their party’s candidate without making the last-minute reversal read like pure political expediency? Again, it’s simple: Cut the heart out of Trump’s sole appeal to moderate Republicans and support Garland’s consideration.
In the end, there’s more at stake here than just the upcoming election. At some point, when the GOP comes to its senses after a likely cataclysmic defeat in November, there will be a reckoning within the party. The next generation of voters will remember what Republicans did in 2016; their relationship with Trump may come to define the remainder of these senators’ political careers. As conservative writer Dan McLaughlin wrote in April, everyone in the GOP will soon want to say he or she was against Trump in 2016. Endangered Senate Republicans can get a head start on their party’s de-Trumpification now by ditching the GOP’s Supreme Court nihilism and urging Republicans to move forward with Obama’s eminently qualified nominee.