Judd Gregg: The Senate, the Supreme Court and the ‘But…’

Senate Majority Leader Mitch McConnell (Ky.) and his Republican colleagues in the Senate have definitively stated that they do not intend to give any nominee President Obama presents for Justice Scalia’s seat on the Supreme Court a hearing, much less a vote.

There is a looming scenario that may require them to reconsider this stand.

{mosads}Before we get to that however, it should be stated that the current Republican position is one supported by logic and history — even if it has caused the voices of the left, specifically The New York Times and the rest of the mainstream media, to become apoplectic.

In recent times, no president of one party has been granted the confirmation of a Supreme Court justice when the Senate has been controlled by the other party. This is because of the importance of the position and the precedence of such an action. 

Supreme Court justices last long after a president departs. Their influence is immense; their appointment can fundamentally affect the direction of the nation. The politics of a divided government simply does not tolerate the idea that such a significant act should occur in the last few days of a president’s term.

Both Senate Minority Leader Harry Reid (D-Nev.) and his presumed successor, Sen. Charles Schumer (D-N.Y.), have made this point in the past. Reid made the argument aggressively; Schumer did so in a more artful but equally definitive manner. The Republican leaders of the Senate are today merely agreeing with the sage council of these two powerful Democratic leaders.

But — and it is a large, real but — the majority leader and his team may want to rethink this decision if certain things occur.

Let us presume that because he may have — after seven long years of ineptness — figured out how to govern, the president sends up a thoughtful, responsible, moderate as the nominee. Maybe this person is even a Republican. There was a trial balloon floated of the governor of Nevada, Brian Sandoval. 

Sandoval quickly removed himself from consideration. But assume there is another person with a resume similar to his. Assume the president in an act of actually trying to govern, rather then score political points with his base, sends the name of such a person to the Senate.  

Would this alone —  the presentation of a nominee who was thoughtful, responsible, moderate and a Republican —  suggest that McConnell and his team need to reconsider their stance of “no hearing, no vote”?    

The answer is probably not — although the president would claim the high ground in the debate that would surely follow. And such a move would also put significant pressure on GOP senators up for reelection in contested states like New Hampshire, Illinois, and Ohio. But still the answer from the Republican leadership would, I suspect, be “no.”

But, this is only part of the play: The first act.

The next two acts are the definitive game changers and it looks like they are well on their way to being written.

Let us assume that the two presidential nominations are won by Hillary Clinton and Donald Trump. Let’s also assume that The Donald is a disaster. Neither of those assumptions are particularly outlandish guesses. 

Hillary wins. The Donald not only loses but also costs Republicans control of the Senate.  

This scenario is more than a mere possibility.

Before Hillary is even inaugurated, in early January 2017 when the Senate meets, there will be an immediate action, a matter amounting to parliamentary spontaneous combustion.  

The Democrats, the new majority in the Senate, will exercise the so-called “nuclear option.”  They will make the confirmation of  Supreme Court nominees a matter requiring only a simple majority: 51 votes. Just like that, a Supreme Court justice will be confirmed.

Now consider who would be nominated: Someone who subscribes to the view that America is essentially a socially unjust place; who views our market economy as anathema; who believes that the Constitution should be interpreted according to the cause du jour.  

The nominee will in other words be a young, intelligent radical, most likely a Harvard law professor with a worldview akin to that of Sen. Elizabeth Warren (D-Mass.)

The Court will swing wildly left. Justice Sonia Sotomayor will be made to look thoughtful, reasonable and even interested in precedent by comparison.

I suggest my former colleagues think about this. Right now the odds-makers have made this scenario a prohibitive favorite.    

The best deal in town will occur if the president sends up a decent nominee. If he does not, and instead sends up another liberal automaton, then McConnell and his gang should stick to their present justifiable course.

But if he tries to govern and does present a rational, thoughtful, moderate, especially Republican nominee, they should take the deal. 

The alternative scenario will be devastating.

Judd Gregg (R) is a former governor and three-term senator from New Hampshire who served as chairman and ranking member of the Senate Budget Committee, and as ranking member of the Senate Appropriations Foreign Operations subcommittee.