As Senate Majority Leader Mitch McConnell pulls yet another lever to justifiably speed up the confirmations of President Trump’s judicial and executive branch nominees, conservatives are celebrating. With McConnell at the helm, conservatives will now fill long-vacant executive branch positions, in addition to securing at least two immensely qualified and originalist judges on the Supreme Court with the retirement of Anthony Kennedy, as well as a flurry of originalists on the appellate courts.
Given this near three-year track record of success, it is clear that one of the most ambitious gambles in our modern legislatures’ history — the refusal of giving Merrick Garland a hearing and subsequent nuking of the judicial filibuster — has paid off big for conservatives. However, the current situation has also put conservatives, and more importantly, the Senate, in a precarious position.
Inevitably Democrats will, at one point or another, control the chamber. In fact, it’s quite possible they could control it in the near future, with a tough 2020 map staring down Todd Young, a Republican from Indiana, and McConnell. Undoubtedly, this would result in any Trump SCOTUS nominee being blocked by a simple majority of Democrats as retaliation for McConnell’s bold gambit on Garland.
Not only that, but when this happens, it’s more than likely the one-upmanship in judicial nomination gambits and subsequent confirmation votes will reach the Harry Reid v. McConnell escalation we saw in the Obama years. In fact, the idea of an executive branch or SCOTUS nominee being confirmed by a Senate controlled by the opposing party may well be dead.
This reality has conservatives who are no doubt thrilled with McConnell’s gamesmanship asking, in hindsight, how an alternate strategy could have created a longer-lasting victory. One such alternate strategy (that would have been equally as significant a gamble for McConnell) would have been for him to hold his caucus’s feet to the fire on a vote to confirm Garland. 2016 saw a handful of nail-biting Senate races, particularly in traditional swing states such as Wisconsin, Pennsylvania, North Carolina, and Florida.
However, let us examine the incumbents in question, who ultimately won reelection with an open Supreme Court seat on the line: Ron Johnson, Pat Toomey, Marco Rubio, and Richard Burr. Burr voted against justices Elena Kagan and Sonia Sotomayor in times of far less political pressure, so we can assume a hypothetical no vote on Garland. Rubio routinely held up President Obama’s judicial picks by withholding blue slips, so much so it garnered coverage in Politico and other D.C. news outlets. Given that history, it is doubtful such a pivotal vote against Garland would be hard for McConnell to pry from Rubio.
Lastly, Johnson and Toomey have long been considered establishment types who were desperate to use the McConnell war chest in difficult races, which both won narrowly. It is difficult to see a scenario where they would have voted for Garland’s confirmation knowing they desperately needed McConnell’s dollars to help boost them across the finish line.
Even if swing votes such as Lisa Murkowski or Susan Collins had bucked McConnell, he still would have had the necessary 51 votes to vote down Garland. The idea of going through hearings that McConnell and Judiciary Chair Chuck Grassley could have dragged on strategically for as long as they saw fit—or at least until they were positive that they had the 51 votes needed to block Garland—is plausible, and would have put Republicans in a far more defensible position of voting Garland down based on his merits and jurisprudence.
In the eyes of moderates, this would have been seen as a far more acceptable stance than an outright refusal of a hearing for Garland, and would not have left conservatives in such a precarious position. Even absent the previous assumption, a simple filibustering of Garland would have been a real possibility for conservatives, as unlike the Cruz-Obamacare filibuster, Democrats would have never been able to muster 60 votes between their caucus and a few stray Republicans that would have been necessary to break a filibuster on Garland.
All in all, despite the obvious success of McConnell’s bold move, many long-game conservatives are musing over over the multiple ways Republicans could have stopped a liberal like Garland from filling the seat of a full-throated originalist without upping the ever-growing ante in the game of judicial nominations. Now, for better or worse, a generation of constitutional conservatives faces immense challenges the minute the Senate flips.