Senate Republicans are about to gamble. With President Obama’s nomination of Merrick Garland to the Supreme Court today, he is offering the Senate majority a judge with a reputation as a moderate rather than a hard line liberal. Whatever arguments can be brought against his confirmation, it is a near certainty that if the Democrats win the presidential election in November, the next nominee sent up to the Hill will be much farther to the left than Garland. If, as the Democrats hope and Republicans fear, a Donald Trump presidential candidacy drags the GOP down to a decisive defeat this fall, it may also flip control of the Senate. In other words, if you are a Republican pessimist — and, as I wrote last night in the wake of another evening of victories for Trump, the GOP is no party for optimists anymore, Judge Garland may be the most conservative SCOTUS nominee that will be presented to Congress for the next four to eight years.

As President Obama hoped, this places Majority Leader Mitch McConnell and his caucus in a difficult position. Garland is clearly an exemplary nominee from the point of view of qualifications and temperament. To not even meet with him, let alone grant him a hearing or an up or down vote, looks bad even to voters who have become accustomed to the highly partisan nature of Washington politics. But if enough Republicans crack under the pressure and confirm him, they are doing two things they don’t want to do.

Let’s leave aside for the moment the fact that if the position of the two parties were reversed, it would be the Democrats stonewalling the nominee and the Republicans would be insisting on a vote. In fact, those were exactly the positions of the two sides back in 1992 when Vice President Joe Biden (who was the chair of the Judiciary Committee at the time), vowed to deny a hearing to anyone nominated by the first President George Bush in his last year in office. That was also true in 2007 when Chuck Schumer, who will lead Senate Democrats next year, said his party wouldn’t confirm anyone nominated by the younger President Bush in his last 18 months in office.

These are telling arguments against the president’s self-righteous preaching about the Constitution. He is a hypocrite who didn’t think judicial nominees deserved an up or down vote when he tried to filibuster Justice Alito’s nomination in 2006. Nor did he demonstrate any fidelity to the Constitution when he bypassed Congress on immigration or sought to get the Iran nuclear deal — the most important foreign treaty of the last generation — approved by a filibuster rather than two-thirds majority of the Senate required by the nation’s founding document. Neither side has the high ground in this fight because there is none. The only thing at stake here is control of the Supreme Court and that is a fight worth having for both sides no matter what the cost.

However the fact that Obama is as bad as the Republicans is beside the point for the moment. The question facing the GOP now is not which side’s talking points are stronger but whether to accept a moderate now rather than a liberal next year. Though the president has done his best to make that decision as difficult as possible in order to make political hay in an election year, McConnell and his colleagues don’t really have a choice. They have to say no to Garland.

Why is that so? There are two reasons.

The first is that although confirming Garland might be the most prudent choice if your goal is to keep the court from swinging completely to the left, it will also be an indication that Senate Republicans believe their party is doomed in 2016.

With Donald Trump on his way to the GOP presidential nomination, that might well be true. Trump might be leading the party to, as John noted recently, a Barry Goldwater or Walter Mondale-style wipeout. That would not only mean the return of the Clintons to the White House but Chuck Schumer assuming the post of Majority Leader. In that case, the liberals will have their way on the Supreme Court as well as just about every other issue before the nation.

But even if you think Trump is a complete disaster — and most of the Senate GOP caucus probably does think that — signaling that they believe defeat is inevitable is something they can’t afford to do. They have to demonstrate faith in the ability of their party to somehow prevail in November or they might as well just give up and go home.

Moreover, while the president is hoping pressure from independents will cause moderate Republicans and those up for re-election in swing states to back Garland, McConnell and his leadership team know that they will get far more heat from the GOP base if they surrender on the issue. One of the reasons why Trump is succeeding is anger at the party’s Congressional leadership. Caving on Garland will tear the party apart.

The second reason is just as important. Though Garland appears to be a moderate and an easy person to admire, he will be taking the seat of the man who was the foundation stone for conservative judicial theory in this generation. If Garland were replacing Justice Anthony Kennedy, Republicans could justify it on the grounds that they would be swapping out one swing vote for another. But Garland is the replacement for Antonin Scalia and would mean a sharp shift in the court’s ideological makeup.

While Judge Garland’s decisions will be examined with a fine tooth comb by conservatives looking for arguments against him, we need to understand that the White House has already done that and if they are satisfied with him, Republicans are not likely to be happy.

As the New York Times noted in an analysis piece published online this morning, Garland may not be as centrist as some might think. In an analysis of his appeals court rulings done in June 2015 by legal scholars, they placed Garland firmly in the middle of the Supreme Court’s four liberal members, not in the center. If their chart is to be believed, Garland is actually to the left of Justices Elena Kagan and Stephen Breyer while not quite as liberal as Justices Ruth Bader Ginsburg and Sonia Sotomayor.

If that is accurate, then the choice really isn’t so difficult. If Garland is going to be a solid member of the liberal faction on the court giving them a majority for the foreseeable future, then how much farther to the left could someone nominated by Hillary Clinton drive the court? If, as his rulings seem to indicate, Garland could reverse Heller, and eviscerate the Second Amendment, then standing fast and hoping for a GOP win in November may actually be the only hope for conservatives rather than a reckless gamble.

As I wrote yesterday, Democrats are overestimating their ability to make this controversy a major factor in the 2016 election. But even if this were as much of a coup for the White House as his party thinks, given that the dangers of confirming Garland are as bad if not worse than those associated with stopping him, the Republicans have no choice but to stand their ground and let the media and the left rage away at them.

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