Justice

The Two Short Words That Could Keep Merrick Garland From Being Confirmed

CREDIT: AP Photo/Pablo Martinez Monsivais

“Dick Lugar.”

If you want to understand why the battle to confirm Supreme Court nominee Merrick Garland — a moderate, not especially ideological federal appeals court judge — has turned into an historic display of Senate recalcitrance, then a good place to start is the 2012 Republican Senate primary in Indiana between Sen. Richard Lugar (R-IN) and state treasurer Richard Mourdock.

Lugar was a powerhouse in Indiana politics, a six-term incumbent who’d held elected office longer than most of his constituents had been alive. Mourdock, meanwhile, was a human gaffe machine. Mourdock called Social Security, Medicare and Medicaid unconstitutional. He told MSNBC’s Chuck Todd that “bipartisanship ought to consist of Democrats coming to the Republican point of view.” And, in his most famous case of verbal diarrhea, called pregnancies that result from rape a “gift from God.”

And yet Mourdock trounced Lugar in the 2012 primary, beating the longtime incumbent by over 20 points.

One of Mourdock’s primary grievances against Lugar was that the senator voted to confirm President Obama’s Supreme Court appointments Sonia Sotomayor and Elena Kagan. This grievance was shared by powerful Republican interest groups, including the National Rifle Association, which ran ads attacking Lugar for supporting “both of Barack Obama’s anti-gun nominees to the Supreme Court.”

Four years later, Lugar stands as an example of what can happen to even the most venerable Republican senators if they offer less-than-maximal opposition to a Democratic Supreme Court nominee. As Jonathan Chait wrote shortly after Lugar’s loss to Mourdock, the senator’s votes for Sotomayor and Kagan were consistent with a “longstanding practice of extending presidents wide ideological latitude on their Supreme Court picks. In the absence of corruption, lack of qualifications, or unusual ideological extremism.”

Now, however, “the social norms that previously kept the parties from exercising power have fallen one by one,” and that includes the norm that Supreme Court nominees were generally confirmed unless their views were outrageous. Today, senators will oppose a nominee simply because the nominee is not who the senator would have picked.

And, in case a Republican senator thinks to restore the old norm, we are already seeing signs of just how swiftly the Republican interest group infrastructure will move to punish even the smallest departure from orthodoxy. The GOP leadership’s stance on Garland — a stance that is fueled by demands from advocacy groups — is not simply that Garland will not be confirmed, but that he will not even receive a confirmation hearing.

Last week, Sen. Jerry Moran (R-KS) departed slightly from the leadership’s position. Though Moran explained that “I can’t imagine the president has or will nominate somebody that meets my criteria,” he told a gathering of constituents that he believes that Republican senators should meet with Garland and give him a hearing.

Almost immediately, GOP interest groups mobilized to put Moran in his place. The conservative Judicial Crisis Network is “putting the finishing touches on an ad campaign focused on Moran,” according to McClatchy’s Curtis Tate. The Tea Party Patriots Citizen Fund put out a statement claimed that “this kind of outrageous behavior that leads Tea Party Patriots Citizens Fund activists and supporters to think seriously about encouraging Dr. Milton Wolf to run against Sen. Moran in the August GOP primary.” Heritage Action accused Moran of “caving to liberal pressure” for daring to suggest that Garland should receive a confirmation hearing before he is voted down.


The irony of these reactions is that there may soon come a point when it would be in Republicans’ strategic interest to confirm Garland — such as if Hillary Clinton is 20 points up on Donald Trump this fall. Garland, after all, is 63-years-old and a fairly moderate liberal. The next president’s nominee could easily be much younger (and therefore likely to serve longer on the Supreme Court) and more liberal.

But it is far from clear that groups such as JCN, Heritage Action and the NRA will let Republicans confirm Garland, even if it is in the GOP’s interest to do so.

The epilogue to Lugar’s loss in the 2012 GOP primary is that Mourdock went on to lose to Democratic nominee and now-Senator Joe Donnelly. As it turns out, the people of Indiana didn’t want a senator who thinks God acts through rapists. If Lugar had been the GOP nominee, it is overwhelming likely that Donnelly would have lost.

By refusing to compromise during the primary, in other words, Indiana Republicans left themselves — and the GOP as a whole — in a far worse position than if they had made a more strategic decision. Republican senators have a chance right now to make a strategic decision on the Garland nomination. If past is prologue, however, it seems unlikely that they will do so.