The GOP capitulation on Supreme Court has begun

· February 18, 2016  
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Senate Minority Leader Mitch MccConnell, R-Ky., and Sen. Chuck Grassley, R-Iowa, take the escalator to the CVC for a news conference on health care reform on Wednesday, Dec. 9, 2009. Bill Clark | AP Photo

The fight to block Obama from appointing a radical to the Supreme Court will be the GOP’s Waterloo. The outcome of this imbroglio will by itself determine whether there was any value in electing a GOP Senate in 2014 and whether there is any utility in continuing to invest political capital in this fledgling party.

Sadly, it appears that the tried and tested capitulation game has already begun.

The playbook is the same every time. Even in the face of less consequential political fights, Republicans start out talking tough. Then, leadership allows the weakest liberal members to begin dissenting from the party line and even trash talking the party to the media. Next, leadership says they have to embark on the legislative process to be fair but still oppose the initiative and will personally fight against it. Then, depending on how many votes it needs to pass, they decide whether to throw in with the liberal Republicans.

The minute Obama announced his intention to nominate a replacement for Justice Scalia, thereby making the existing liberal advantage on the court complete and irrevocable, Republican leaders had no choice but to categorically oppose it. After all, the party is already hanging by a thread with the base.

Yesterday, the dominos began to fall. While Sens. McConnell, Hatch, and other senior leadership members were still talking tough, liberal Sen. Dean Heller (R-NV) announced his support for Obama to put forth a “consensus” nominee. And although Sen. John Cornyn (R-TX), the Majority Whip, reiterated his desire that the next president fill the vacancy, he said that holding hearings is entirely up to the Judiciary Committee Chairman and scheduling a floor vote is entirely up to McConnell.

These might sound like insignificant chinks in the armor, but remember we are only a few days into this battle and Obama has yet to put forth a name.  There is no doubt he will nominate a “consensus” pick. Unlike on the right, the liberal legal field has a plethora of candidates with high commendations, a successful career, a thin record on the bench, yet the full confidence of Democrats that they will rule our Constitution unconstitutional upon assuming office.

Obama knows how to push the RINO buttons. He will nominate someone who comes highly recommended in the legal field and it will be a big “first.” Perhaps the first transgendered Muslim immigrant to be picked. He knows Republicans are very sensitive to looking like “obstructionists,” especially in the face of such “historic” progress.

At that point, it will become a slow bleed. You will see Sens. Murkowski, Collins, Kirk, and other liberals join with Heller and call for “fair hearings.”  (How eerie that just two weeks ago, I called for Sen. Grassley to be replaced because his spot on the Judiciary Committee Chairman is too vital for someone so fickle.) Grassley will undoubtedly cave to pressure and that will get the ball rolling.  And once the nominee goes through the meat grinder of confirmation hearings, how can he not get a floor vote?  To that end, the weakest members of the committee, beginning with Lindsey Graham, will likely vote the nominee out of committee and onto the floor.

While still espousing personal opposition to the nomination, McConnell will wait until the pressure from liberal Republicans is too strong and say he has no choice but to schedule a floor vote. Then it’s a matter of time before 10 more Republicans are picked off and walk the plank: “While I intend to oppose confirmation, I believe the nominee deserves an up-or-down vote, and as such, I will vote to end the filibuster.”

One would think the messaging behind this would be so easy. Republicans should easily put Democrats on defense and have history on their side. But you can only fight if you believe in what you are fighting for. And let’s face it: To a large degree Republicans want the courts to be the final arbiter of the major political questions of our time. That way they don’t have to get their hands dirty. You know as well as I do that many Republicans “breathed a sigh of relief” when the courts redefined marriage from the bench.  One more inconvenient issue dumped off our ship.

Despite the bravado from McConnell and his allies, this is how the confirmation fight will play out unless the grassroots mobilizes immediately. McConnell has convened a meeting of the conference next Wednesday to iron out this issue. And unless the phone lines of every senator are melted down for the next week, the writing is already on the wall.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.