After a promising initial 48 hours of conservatives and Republicans holding strong in their determination to block all Obama nominees to the U.S. Supreme Court until the November election, the levees started to break a bit on Tuesday.
Sen. Thom Tillis of North Carolina decided to do the lapdog liberal media’s work for the Democrats, preemptively warning his Republican colleague against an “obstructionist” approach to the impending fight over Justice Antonin Scalia’s replacement. This is an astounding misunderstanding of the very gridlock which Justice Scalia himself long argued was woven into our very constitutional fabric, and I think represents such a blatant misunderstanding of our constitutional structure so as to justify—if continually pushed—a future primary challenge. And yet, for all of Sen. Tillis’s failure to understand our Constitution’s structural securing of liberty via both federalism and (as here) the checks and balances, the real news was Senate Judiciary Committee Chairman Chuck Grassley refusing to rule out a Committee hearing on Obama’s submitted SCOTUS nominee.
Holding this hearing would be a terrible idea, and as conservatives we cannot let it happen.
Let us take Sen. Grassley at his word that the fate of the Supreme Court should properly be a baked-in political choice at the ballot box this November. What exactly is the point, then, of holding a Judiciary Committee hearing on any nominee short of a rock-ribbed originalist like a Miguel Estrada or a Paul Clement? (The odds of President Obama nominating a rock-ribbed originalist jurist, to clarify, are not merely approximately, but literally, zero.) The only possible justification for this show hearing would be as a purported olive branch to the White House, which would allegedly then make the decision to not hold a Committee vote on the nominee more politically defensible.
With all due respect, that is nonsense. The way this scenario would play out is entirely predictable. The Democrats’ media apologists would inevitably sing the praises of how well Obama’s “supremely well-qualified nominee” performed in the “hostile” environment of the Republican-controlled Senate Judiciary Committee. Scrutiny would intensify and Grassley would be immensely pressured into holding an up-or-down Committee vote. The media might even deploy racially insensitive terms like calling this a reverse “high-tech lynching,” if the nominee ends up being Attorney General Loretta Lynch or D.C. Circuit Court of Appeals Judge Sri Srinivasan.
At that point, then, one must account for the possibility of defections. Republicans hold a narrow 11-9 majority on the Committee. The aforementioned Sen. Tillis sits on the Committee, and suffice it to say he cannot be reliably trusted right now to hold the line. If Tillis folds, the Democrats would only need one more Republican crossover vote for the nomination to pass out of Committee—at which point we would need to rely on RedState’s very favorite son, Majority Leader Sen. Mitch McConnell, to prevent a floor vote. It is not at all difficult to see Grassley himself caving due to the pressure he will receive, with more senior and accommodative Committee members like Sen. Lindsey Graham or Sen. Orrin Hatch also being distinct possibilities.
Quite simply put, there is virtually no upside here except the possibility that the nominee looks so genuinely terrible at the Senate Judiciary Committee hearing so as to preclude the media from pushing the Democrats’ narrative for them that a Committee vote must then take place. In no sane world, though, is that worth the risk of the alternative of a passable hearing. The Democrats and the media would not care about the Republicans’ olive branch—the proverbial goalposts would merely shift.
I know I cannot be the only one here who does not want to risk Mitch McConnell being the ultimate guardian of the Constitution for a generation. Not only would McConnell be the last line of defense for the Constitution, moreover, but he would probably also be the last line of defense for the Republican Party itself:
In this battle, Republicans have the Senate majority, the lockstep support of an energized base, the Constitution, and the better political argument. If the GOP can’t hold the line under those circumstances, then its Senate majority will be the least of its concerns. The GOP coalition — already strained to the breaking point by Donald Trump’s challenge — may well shatter apart. The GOP as we know it could cease to exist, killed not by electoral defeats but by its own cowardice and incompetence. Fight well, GOP. Your institutional life is at stake.
Conservative activists, Mitch McConnell skeptics, and those concerned about the future of our constitutional order all need to urge Chuck Grassley to not hold a Senate Judiciary Committee hearing for any Obama nominee to the U.S. Supreme Court. Call Grassley’s Senate office at (202) 224-3744 to tell him “NO” to any hearing.