Jurisprudence

SCOTUS Above All Else

Sen. John McCain’s recent comments reveal how the Republican Party’s Supreme Court strategy is backfiring.

John McCain.

Photo illustration by Slate. Photo by Chip Somodevilla/Getty Images, Tydence Davis/Flickr CC.

Via a gaffe that probably wasn’t really a gaffe, Sen. John McCain this week has gifted the electorate with a new awareness of the continued GOP refusal to hold hearings or a vote on a Supreme Court vacancy that opened up more than eight months ago. Not only did McCain promise, then un-promise, then sort of re-promise, to ensure that all of Hillary Clinton’s nominees would be obstructed if she wins the presidency. He also accidentally revealed that—claims that Obama is not really the real president in his third year of a four-year term in office notwithstanding—obstructing anyone nominated by any Democrat was the endgame all along.

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Speaking Monday to Philadelphia’s WPHT-AM radio in an interview promoting fellow Republican Sen. Pat Toomey, McCain made it clear for the first time that Republicans will continue to block anyone the next president nominates to the Supreme Court as well as the last one: “I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up,” McCain said.

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Later Monday, his office (but not McCain himself) walked back the implication that Senate Republicans would dedicate themselves to formally obstructing any Clinton nominee. In a statement, spokesperson Rachael Dean tried to clarify:

Senator McCain believes you can only judge people by their record and Hillary Clinton has a clear record of supporting liberal judicial nominees. That being said, Senator McCain will, of course, thoroughly examine the record of any Supreme Court nominee put before the Senate and vote for or against that individual based on their qualifications as he has done throughout his career.

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What McCain is saying here remains ambiguous, but he seems to be agreeing to a vetting of future nominees, not necessarily a hearing or vote.

It hardly warrants saying, but whatever insane argument the GOP once proffered about refusing a hearing for Obama nominee Merrick Garland for more than 200 days are now shown to be the sham they are. This never had anything to do with ensuring that the next president seated the next justice with the advice and consent of the people. This was always about ensuring that only a Republican president would seat the next justice and the justice after that. McCain just said what many of us long suspected: The obstruction will continue, notwithstanding the judicial and constitutional havoc it may create, because better to have a hobbled court than a liberal one.

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This is new ground. But as I argued last month, it was all pretty well foreshadowed when the GOP filibustered Obama’s 7th Circuit Court nominee David Hamilton within weeks of Obama assuming the presidency. If you doubt whether McCain could really mean what he said on Monday, look no further than the actions of the GOP when that well-regarded judge, recommended by a senior Republican senator (Dick Lugar), was blocked for no reason other that Obama had named him.

McCain’s problem is that even if he said what much of the GOP is really thinking, he’s forced everyone to defend a position many of them cannot or will not defend. Suddenly the GOP stance on this issue has become not just disingenuous, but also incoherent.

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Even on its face, the claim that all Senate Republicans will be “united to block any Hillary Clinton nominee” makes no sense, especially when, as David Weigel notes, no such unity is in evidence. Sen. Chuck Grassley said at a campaign event last week: “We ought to let the people have a voice, and let the new president make a decision. So whether Hillary wins or Trump wins, I think it has to be done on Jan. 20 or after that.” Grassley announced Tuesday, after McCain’s comments, that if Clinton became the next president, he would not “stonewall” any person she nominates for the vacancy on the U.S. Supreme Court: “I think we have a responsibility to very definitely vet, if you want to use the word vet, whoever nominee that person puts forward.” Grassley has also said he agreed with McCain’s “modification” of his earlier statement about vetting. But to him, “vetting” clearly means a vote. On the campaign trail Tuesday, Grassley attempted to clarify what he was offering come January: McCain is “basically saying that we’re going to process nominees, but whether we vote for them or not is a completely different thing.”

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That position is itself a long way off from statements made by other Senate Republicans who have long held that the three-year presidential term was a pretext from the start. Last month Sen. Jeff Flake told the Washington Post that he would assuredly not be for delaying a Garland hearing after the election: “It couldn’t be long,” he said. “Some people would say, ‘Oh hold out as long as you can.’ But politically, you can’t hold off that long. And you shouldn’t. I think we ought to move on him as soon as we get to the lame duck. Frankly, we’ll be lucky if—assuming Hillary Clinton wins—she appoints him.”

Flake also made things awkward for the Republicans in the Senate when he said, earlier this month: “Our position shouldn’t be that the next president ought to decide. Nobody really believes that, because if this were the last year of a Republican presidency nobody would say that.”

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Why the completely inconsistent responses to McCain’s simple pledge to block all future Clinton nominees? Some of this is senators in tight races attempting to distance themselves from Trump while claiming that the composition of the court is so urgent that only a Republican blockade in the Senate will protect you. For McCain, that means promising that no Clinton justice can ever be seated. For others, it means the opposite: promising the obstruction will end.

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That’s not the only source of disagreement. Grassley has praised Trump’s list of potential Supreme Court nominees. McCain said outright he isn’t sure that the names have any real meaning or that Trump would stand behind them. So Grassley seems to be firmly in the Trump because-the-court camp while McCain has located himself in the Me because-the-court camp. What’s a voter worried about the court to do?

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It seems to me that what’s causing all the melting messages here is the unforeseen consequence of a decades-long campaign by the GOP to make the composition of the court the only important issue for voters. Whether it was a way to rally opposition to Roe v. Wade, or a means of mobilizing gun rights voters, it’s useful to push the idea that the only thing that matters in a presidential contest is the court. The problem with that argument is that in its purest form it leads precisely to where we are today: Trump’s repeated claims that no matter how odious he may be as a candidate, you’ll vote for him anyhow because otherwise Hillary judges will destroy America.

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For some people, that’s a convincing enough argument. Unfortunately for Trump, though, it’s been roundly rejected by anyone who believes that the rule of law is more important than the composition of the court. On the same day Grassley and McCain were ripping the mask off Garland obstruction as blood sport, a list of the most respected constitutional originalist scholars published a devastating attack on Donald Trump, regardless of whom he may name to the court.

The other consequence takes you down the path opened up this week by John McCain. It’s the path that—for the first time in history—claims that the composition of the court is so vitally important that the Senate should stand by for four years as the court becomes less and less functional. It’s the path that claims that it’s better for the Senate to default on its constitutional responsibilities than to have a functioning constitutional democracy.

This is all, I suppose, a natural outgrowth of decades of GOP howling that the court is the only thing that matters in an election year. We are now hearing arguments that posit the choice between electing the most lawless president Americans have ever encountered, or indulging serious arguments about the necessity to blow up the court, the executive branch, and the Senate itself, in order to preserve the Constitution.

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