the national interest

Why Republicans Won’t Let Clinton Appoint a Supreme Court Justice If She Wins

Hang on, Mitch McConnell is thinking of a new constitutional principle. Photo: Tom Williams/CQ-Roll Call,Inc./Getty Images

If you still believe the Republican Party is coming apart at the seams, or even plunging into a civil war, look at what North Carolina senator Richard Burr told volunteers this weekend in privately recorded audio. Burr dispensed with the myth that Donald Trump disagrees with the central thrust of the party platform, insisting, with mild exaggeration, that the nominee “aligns perfectly with where the Republican Party is.” More important, he promised that he would oppose any candidate Hillary Clinton nominated to fill the vacancy created by Antonin Scalia’s death “if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

In the spring of 2014, I predicted that, should Republicans hold on to their Senate majority, they would never allow a Democratic president to confirm a justice should one of the conservative members die. Almost two years later, Scalia died, an event that happened so quickly it gave Republicans little time to formulate a sturdy rationale to defend what ideological and political self-interest dictated would have to become their position. They hastily converged on the idea that it was “too late” for Barack Obama to fill the seat, and that the proper (small-d) democratic outcome required letting the winner of the election seat the next justice. “The American people should have a voice in the selection of their next Supreme Court justice,” insisted Mitch McConnell. This was before Trump had wrapped up the nomination. Indeed, betting markets at the time of Scalia’s death still gave Trump less than an even chance of winning the nomination, and the presidential election seemed very winnable.

But the likelihood of a Trump defeat will force the party to devise a new rationale. If Democrats take back the Senate majority, it will play out in fairly predictable fashion: Republicans will filibuster whoever President Clinton nominates, then the Democratic Senate will change the rules to outlaw filibusters of Supreme Court justices. But if Republicans hold the Senate, they will probably decide to simply hold the seat vacant. Why let this election reflect the will of the people? Why not try for another election?

Burr is hardly the only Republican to make this case. Such distinguished conservative legal minds as senator and former University of Texas law professor Ted Cruz, constitutional scholar Michael Paulsen, and Cato fellow in constitutional studies Ilya Shapiro have all begun the arduous intellectual work of discovering why the Constitution demands that Clinton be denied a ninth justice. They have developed some promising theories that, should the electorate deliver the necessary Democratic presidency–Republican Senate combination, will next year blossom into the foundational bedrock principles of the Republic itself.

Under either scenario of a Clinton presidency, with either a Democratic or a Republican Senate, the GOP will find itself united in opposition. Mario Loyola has a long essay in National Review sounding what is sure to be the prevalent theme in conservative postelection rhetoric. “Conservative Republicans of a Never Trump persuasion are making a big mistake by making enemies of Trump’s supporters — and vice versa,” he argues. The party should not tear itself apart over such trivial matters as to whether it is a good idea to turn over the Executive branch to an unstable, dictator-admiring racist. Instead, it should unite around common beliefs, such as “fight[ing] tooth and nail to keep Hillary Clinton from nominating a justice to fill [Scalia’s] seat.” Trump’s nomination will not create a schism or a reckoning within the party that nominated him. Republicans will instead just continue lurching into the same direction they have been heading for decades.

Republicans Won’t Let Clinton Appoint a Justice If She Wins