Senate Democrats are making a full court press to show that Judge Merrick Garland deserves a spot on the Supreme Court—and that Republicans are making a woeful misstep by refusing to consider him.
"It's crystal clear after talking to him that Judge Garland has both a brilliant legal mind and a heart of gold," Senator Chuck Schumer of New York, the Senate's second-ranking Democrat, said after meeting with Garland on Tuesday.
Two days earlier, Senate Minority Leader Harry Reid said that Republicans were risking an election flop by refusing to consider Garland, President Obama’s nominee to replace the late Antonin Scalia.
“They're going to wind up as a result of this foolishness losing Senate seats they shouldn't have lost,” Reid said on NBC’s Meet the Press. “I’m kind of glad they're doing it, but it's so foolish.”
There is reason to think Reid is right. A Monmouth University poll released Monday found 69% of Americans—including 66% of independents, and even 56% of Republicans—disagree with Senate Republicans’ refusal to give Garland a hearing.
Democrats can point to other polls that show independents are less likely to vote for senators who obstruct Garland. And quick announcements by GOP senators facing tough reelection races that they will meet with Garland suggest Republicans are worried about the electoral consequences of their party’s course.
But the obstruction plans of Senate GOP leaders may not be as foolish as Reid hopes. Republicans reason that their base badly wants to stop Obama from filling the vacated seat, leaving the most liberal high court in 50 years.
The priority of Senate Majority Leader Mitch McConnell (R-Ky.) seems to be ensuring turnout by those GOP base voters, whose intensity likely outstrips that of the Americans who tell pollsters they vaguely prefer that Garland gets a hearing.
While blocking a confirmation vote may hurt some senators who rely on independents, the majority of Republican Senate candidates could benefit from increased turnout by GOP base voters eager to keep the court conservative.
“I don’t think this is a loser for Republicans,” said Jennifer Duffy, who analyzes Senate races for The Cook Political Report, a nonpartisan election handicapper. “It keeps their base very, very engaged to have it be an open question in November.”
That’s important because Republicans are sharply divided over GOP presidential frontrunner Donald Trump. Party strategists worry that many Republicans will stay home with Trump on the ballot. Democrats are comparatively united behind Hillary Clinton and motivated to stop Trump or Texas Sen. Ted Cruz.
“Their base is already there,” Duffy said.
Republicans argue that most voters care less about the process for filling the court vacancy than the result: Democrats want someone nominated by a Democrat as the ninth Justice; Republicans want a GOP president to make the pick.
Republicans also assert that when Americans vote in November, with the White House up for grabs, most won’t base decisions on the court vacancy.
A monthly Gallup poll for March found the economy and dissatisfaction with government are Americans’ leading concerns, as they were in February. Scalia’s death and the furor over McConnell’s vow to block consideration of a nominee until next year did not discernibly affect the results.
“It’s not something independent or swing voters are going to make their decision on,” said a Republican strategist involved in Senate races. “The intensity is just not there.”
Democrats disagree. They point to editorials in newspapers around the country urging GOP senators to stop blocking the Garland nomination. Democratic-leaning pollsters also report that swing voters in battleground states claim they are likely to vote against senators blocking a Garland hearing.
Democrats’ hashtag for pressuring Republicans—#DoYourJob—depicts GOP obstruction as part of the unsatisfactory government performance that Gallup shows Americans do care about. Democrats also hope to use GOP obstruction to tie Republican senators to Trump, whom Americans view negatively by a two-to-one margin.
Pro-Democrat groups are running ads linking Trump with Republicans up for reelection in toss-up or Democratic leaning states, senators like Ohio's Rob Portman, Pennsylvania’s Pat Toomey, New Hampshire’s Kelly Ayotte, and Wisconsin’s Ron Johnson.
“Donald Trump wants the Senate to delay filling the Supreme Court vacancy so he can choose the nominee next year. And Senator Kelly Ayotte is right there to help,” says the narrator in an ad aired in New Hampshire by a SuperPAC supporting Senate Democrats.
Such claims attack the branding of Republicans like Ayotte and Senate Judiciary Chuck Grassley of Iowa, who sell themselves as nonpartisan problem-solvers. Helping Trump stop the Supreme Court from working doesn’t help that pitch.
Grassley “loses crossover support from Democrats because of his intransigence on the Supreme Court issue,” Public Policy Polling, a Democratic-friendly organization, says in its analysis of a March survey. Former Iowa Lt. Gov. Patty Judge, the toughest Democrat Grassley has faced in decades, said she decided to challenge him partly because his position on the court vacancy makes him vulnerable.
Democrats are attacking every potentially vulnerable Republican over the issue: Sens. Roy Blunt (R-Mo.), Richard Burr (R-N.C.), Mark Kirk (R-Ill.), and John McCain (R-Ariz.) also face criticism.
“Senate Republicans have dug in on their position to shut down the process and let Donald Trump fill the seat,” said Democratic Senatorial Campaign Committee spokesman Sadie Weiner. “Over the coming weeks, we will hold Republican Senators accountable for their unprecedented obstruction.”
Republicans seem worried. Kirk last week called for his colleagues to “man up” and give Garland a vote. Kirk, Grassley, Ayotte, Portman, and Johnson all said they would meet with Garland, breaking with the position McConnell has advocated.
When pressed, Republicans do not deny the Supreme Court blockage is a headache for those senators. But GOP strategists argue that after Scalia’s untimely death, refusing to consider Obama’s nominee was their least bad option.
With the prospect of Trump as the Republican nominee, election handicappers and strategists alike admit that they don’t know how the general election will play out.
Amid that uncertainly, McConnell is taking a calculated risk. He is betting that by keeping faith with their base, Senate Republicans can avoid big losses and maybe even gain support, while whatever disapproval swing voters may feel toward the obstruction will pale beside other issues.
That logic might be cynical, but it’s probably not foolish.