After stonewalling President Obama’s Supreme Court nomination of Merrick Garland to replace Antonin Scalia with the proposal that the American people ought to have a say in the court’s ideological makeup via the presidential election, Republicans now have their feet in their mouths because Hillary Clinton is the favorite to win.
A handful of Senate Republicans have announced they are planning to stonewall Hillary Clinton’s Supreme Court picks indefinitely—Richard Burr, John McCain, and Ted Cruz—and Senate Majority Leader Mitch McConnell, who was first to announce that President Obama would not be afforded the dignity of appointing another Supreme Court justice, has not been as quick in announcing his intentions regarding Clinton’s electoral mandate to fill the court.
The best strategy for Republicans in the event of a Clinton presidential victory is to try to quickly agree to Garland’s appointment in the lame duck period before Clinton takes office. However, Obama and Clinton would have every political right to rescind Garland’s appointment and instead try to appoint an unashamedly liberal justice once Hillary is inaugurated. That would be the karmic response to Republicans’ obstruction and vandalism of one of America’s most statured political institutions.
Republicans would have to give in. It isn’t politically advantageous for Senate Republicans to commit to stalling a Clinton appointment for her entire term because they would clearly be abusing their constitutional privilege to advise and consent. Public opinion would not go along with their repugnant scheming. As such, Democrats, particularly a President Clinton, would have leverage in order to extract some serious concessions from the GOP in exchange for sticking with Garland rather than seeking an offensively liberal replacement.
If Democrats retake the Senate, they would have more than enough leverage because the Democratic majority could change Senate rules to allow Supreme Court appointments with a simple majority rather than a filibuster-proof supermajority in order to quickly consent to whomever Clinton wanted. Republicans might as well take the deal that Clinton could offer.
Clinton could begin her presidential term working in good faith with Republicans by sticking with moderate Garland if they agree to, say, a liberal infrastructure stimulus package and a tax increase on billionaires.
There is ample room here for Hillary Clinton to begin achieving accomplishments for liberalism right out of the gate, and she should not miss the opportunity to force concessions out of the GOP.