We already know what happens to the Supreme Court if Republicans keep the Senate. Sen. John McCain (R-AZ) confessed as much last week, when he said that Republicans “will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” Sure, McCain and several of his fellow GOP senators tried to walk this statement back, but it’s hard to make the numbers add up to a Democratic nominee being confirmed if Republicans keep control of the Senate.
The good news for Americans who believe that the country should have a functioning third branch of government, however, is that it looks increasingly unlikely that the two parties will split control of the White House and the Senate. Polling averages show Hillary Clinton with a strong lead over Republican nominee Donald Trump, and FiveThirtyEight’s forecast gives Democrats a 70 percent chance of winning back the Senate, as of this writing.
So let’s take the most likely scenario, that a few months from now President Hillary Clinton is sworn into office while Senate Majority Leader Chuck Schumer (D-NY) looks on. What does that mean for the future of the Supreme Court and, more immediately, for the man the current president nominated to fill its vacant seat?
Both publicly and in private conversations, Obama White House officials express confidence that Chief Judge Merrick Garland can become Justice Merrick Garland in the Senate’s lame duck session. And Garland does, indeed, have a possible path forward during lame duck. That path, however, most likely depends upon retiring and defeated Republicans agreeing to play ball. It also depends on cooperation from performative ideologues like Sen. Ted Cruz (R-TX).
The basic problem facing Republican senators, assuming the GOP loses both the White House and the Senate this November, is that their selfish interests do not align with their party’s interest. Collectively, Republicans would rather see Garland — an older, moderate nominee — fill the vacancy on the Supreme Court than allow Clinton to appoint someone younger and more liberal. Individually, however, each Republican senator has a strong incentive to vote “no” on anyone nominated by a Democratic president.
Sen. Dick Lugar (R-IN) was a six-term incumbent who was taken out by an especially weak primary challenger after conservative interest groups ran ads attacking him for voting to confirm liberal Justices Sonia Sotomayor and Elena Kagan. Any Republican who votes to confirm Garland (or any other Democratic nominee, for that matter) risks Lugar’s fate.
In a post Citizens United world, there are no shortage of conservative groups that are capable of raising enough money to harass an incumbent in a Republican primary, and many of them are not particularly strategic. They are unlikely to be moved by the fact that Garland was the most moderate nominee Republicans could hope for after Justice Garland starts joining liberal decisions.
It is likely, however, that there will soon be several Republicans who will never have to worry about winning a primary race again. Currently FiveThirtyEight shows incumbent Republicans from Wisconsin, Illinois, Missouri, Pennsylvania, and New Hampshire likely to go down in defeat. Add in retiring Sen. Dan Coats (R-IN), and possible (if less likely) Democratic victories in North Carolina and Florida, and that adds up to eight Republicans who could enter the lame duck session with nothing more to lose.
Additionally, there are a handful of other Republican senators who are likely to back Garland. Sen. Jeff Flake (R-AZ) explicitly called for Republicans to confirm Garland if Clinton wins the election. Sen. Susan Collins (R-ME) is the closest thing the Senate has to a moderate Republican, and is also a likely vote for the moderate nominee. Sen. Lindsay Graham (R-SC) has historically been reluctant to oppose qualified Supreme Court nominees. He is also a likely vote for Garland.
Altogether, that adds up to 11 possible Republican votes for Garland in lame duck (although I have my doubts that Sen. Ron Johnson (R-WI), who is likely going to lose his senate seat to former Sen. Russ Feingold (D-WI), will vote to confirm). Add in the 46 members of the Democratic caucus, and that’s 57 possible votes to confirm Garland.
Which brings us back to Ted Cruz.
Under current Senate rules, a single senator can filibuster a Supreme Court nominee. Breaking that filibuster, moreover, requires a 60-senator supermajority vote. It is unlikely that 60 senators will agree to confirm Garland.
Cruz could screw his party leadership, block Garland, all-but-ensure that a more liberal justice will be confirmed this March, and win the admiration of conservative naïfs — many of whom will vote in the 2020 primaries — in one fell swoop.
The real question, however, isn’t whether 60 senators are willing to confirm Garland’s nomination, it is whether all 100 senators are willing to forgo a filibuster if a majority of the Senate wants him confirmed. Most Republicans would probably be happy, for the reasons explained above, to get out of Garland’s way so long as they do not have to go on record supporting him. But all it takes is one senator who wants to grandstand at his fellow Republicans’ expense to trigger a filibuster.
And no one grandstands like Ted Cruz.
Cruz, of course, shut down the government to demonstrate his willingness to always tack to the right of the GOP leadership. The theory of Cruz’s presidential campaign was that Republican primary voters wanted a candidate who stood up to the party’s establishment. “If you have a candidate who’s stood against Democrats, that’s great,” he once told a gathering of activists. “When have you been willing to stand up against Republicans?”
If Cruz hopes to recycle his 2016 campaign strategy in 2020, the upcoming lame duck session could be his moment. Cruz could screw his party leadership, block Garland, all-but-ensure that a more liberal justice will be confirmed this March, and win the admiration of conservative naïfs — many of whom will vote in the 2020 primaries — in one fell swoop.
It would be Cruz’s 2013 government shutdown gambit all over again, only with a lifetime appointment at stake.