The Supreme Court is one of six main topics that will be covered during Wednesday night's final debate at the University of Nevada in Las Vegas. The late Antonin Scalia's seat continues to sit empty. An evenly divided court has begun its new term under a cloud of uncertainty. Assuming Hillary Clinton wins, it remains unclear whether Republicans will try to confirm Merrick Garland during the lame-duck session to prevent her from putting up someone who is younger and more liberal next year.
The debate took on new significance this week when Sen. John McCain, R-Ariz., boasted during a radio interview that Republicans would automatically oppose whomever Clinton nominates. "I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up," the Arizona senator said. "I promise you!"
Attacked by his Democratic challenger, McCain's spokeswoman released a statement walking back his comment. The senator will "thoroughly examine the record of any Supreme Court nominee put before the Senate," she said. McCain then awkwardly avoided a local TV reporter who tried to follow up.
Republicans, who have struggled to convince voters that they are capable of governing, talked a big game in years past about the need to be more than just "the party of no." That messaging is gone now. The prospect of four more years in the wilderness suggests that they will move back toward unapologetic obstruction.
Right now, however, they are in damage control mode. Judiciary Committee Chairman Chuck Grassley, who is up for reelection in Iowa, promised Tuesday to not automatically "stonewall" any Clinton pick. "If that new president happens to be Hillary, we can't just simply stonewall," Grassley said on a conference call with local press.
This is a very delicate balancing act. Vulnerable Republican incumbents are trying to convince people who are reluctantly voting for Clinton to support them by promising that they'll be a check and balance on the excesses of the Clinton presidency. One man's "check and balance," however, is another man's "obstruction." Regardless of how you play it, the bottom line is that Republicans are trying to save their majority by promising more gridlock.
If Republicans hold the Senate, Mitch McConnell will control the floor schedule and Grassley will continue to have the Judiciary gavel. So they technically could do exactly what they have for the past nine months with Garland.
Democrats are now favored to win the Senate majority. Even if they run the table, however, they'll only control around 53 seats. That is nowhere near filibuster proof. The question then becomes: Which Republicans would cross over to vote for a President Clinton's Supreme Court picks? Could a Majority Leader Chuck Schumer cobble together 60 votes? Or does he invoke the nuclear option and change the rules to allow Supreme Court nominees to be confirmed by a simple majority? Going nuclear will probably be the easier course, both politically and procedurally, especially because the Republican blockade of Garland has cost GOP leaders much of their moral standing to oppose such a gambit.
Contrary to the will of the brilliant men who devised the Constitution, the Senate is increasingly becoming a majoritarian institution. Conservatives, who in principle should be alarmed by this trend, have shortsightedly accelerated it.
There are two very important Supreme Court questions that the candidates have avoided giving direct answers to:
Will Clinton re-nominate Garland? Watch for her to once again dodge on this. She's called him "extremely well qualified," and she's relying heavily on President Barack Obama to get her across the finish line in November. The president sees getting Garland through during the lame-duck as a top priority and a legacy achievement, but Clinton privately wants to pick someone who is younger and more liberal than the 63-year-old moderate.
Will Trump commit to nominating only people who are on his list of 21 potential picks? Aides have said the list is definitive, but the reality TV star has suggested during interviews that he might go another direction. And he has a very long history of not being true to his word. A few of the people Trump floated have chastised him. Utah Sen. Mike Lee, on the second installment of Trump's list, subsequently called on the GOP nominee to drop out. And, amusingly, federal appellate court Judge Diane Sykes (who was in the first batch of names released by Trump) ruled earlier this month against Mike Pence. She said the Indiana governor cannot interfere with the distribution of federal funds to resettle Syrian refugees in his state.
For many conservative intellectuals, stopping Clinton from appointing Scalia's replacement is no longer a good enough reason to support Trump. Among the Republican politicians who have capitulated, such as Sen. Ted Cruz, Texas, holding the Scalia seat is a favorite talking point to justify supporting someone who they privately see as dangerously authoritarian. But 29 top conservative legal scholars have signed onto a letter arguing that it is not enough. The "Originalists against Trump" do not believe Trump would protect the Constitution. And they do not trust him to actually pick from his list of 21. "More importantly, we do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part," they write. The group understands that the alternative is Clinton. "Yet our country's commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court," they conclude.
The Washington Post's Robert Barnes notes that the signatories include a Northwestern law professor who was one of the founders of the Federalist Society, Steven G. Calabresi; Post columnist George F. Will; and a well-regarded conservative law professor at New York University and the University of Chicago, Richard Epstein. "The effort was organized by Duke University law professor Stephen E. Sachs and University of Chicago law professor William Baude, a pair of former clerks to Chief Justice John G. Roberts Jr."
Something to ponder: Will Roberts vote for Trump? He obviously wants to regain his working majority, but he also hails from Indiana — just like Gonzalo Curiel, the federal judge whom Trump leveled repeated, racially loaded attacks against. We'll never know. . .