Supreme Court stand-off

Before Democrats get too smug and self-satisfied about their nominee's chances of getting elected president next month, they may want to consider what kind of Congress we're electing. Sen. John McCain dropped a pretty good clue on Monday when he told a Philadelphia radio station that Senate Republicans would stand "united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up."

Now, let that sink in for a minute. Senate Majority Leader Mitch McConnell and his fellow Republicans claimed eight months ago they couldn't bother to fill Justice Antonin Scalia's seat after his death in February because the matter should be in the hands of the next president. It was a pretty lame excuse to allow the longest standing open seat in Supreme Court history (and leave nominee Merrick Garland to be ignored for a record period of time), but at least such a stand held the promise of a gridlock-clearing decision by voters on Nov. 8.


What Senator McCain said Monday suggests the GOP position was phony-baloney from Day 1. While his remarks have since been tempered — his spokeswoman subsequently issued a statement that the senator would be judging nominees based on their backgrounds and qualifications but expected Ms. Clinton to nominate a liberal based on her history — they are a reminder of the hyper-partisan atmosphere that still exists on Capitol Hill. In other words, President Clinton's Supreme Court nominee can expect a thorough kangaroo court-style hearing before Republicans find him or her wanting and block a confirmation vote.

The Republicans' mistreatment of Judge Garland, a widely-respected centrist, suggests there's little chance any Clinton nominee will get a fair shake, at least not under the current Senate majority. Judge Garland is only the highest profile example of GOP indifference to filling vacancies on the federal bench — there are currently more than 90 vacancies, with President Barack Obama's 51 nominees existing in a Twilight Zone of Senate inaction. Just nine district judges and one appeals court judge have been confirmed since February.


Confirmation slowdowns are common in election years, but as with the Scalia vacancy, Senate Republicans have taken matters to new extremes. All of which points to only one possible way to guarantee a Clinton Supreme Court nominee is treated reasonably by the Senate — ousting enough GOP Senate candidates so that the party can no longer hold the nation's highest court hostage. A Democratic majority wouldn't guarantee a Clinton nominee is approved, but it would at least give that person a fighting chance.

The irony, of course, is that Mr. McCain's revelation took place while he was campaigning for fellow Sen. Patrick Toomey who faces a tough re-election fight in Pennsylvania, a state that is likely to wind up in the Clinton column. Senator Toomey has, among other things, declined to endorse Donald Trump, positioned himself as a moderate (he's for improved background checks on gun purchases, for example) and famously sidestepped presidential politics whenever possible — much to the amusement of late-night comedians. The last thing he needs is for Clinton supporters to leave his camp.

We would also bemoan the reappearance of Political Extremist McCain and the departure of Straight Talk McCain, but the latter incarnation of the Arizona Republican has been largely MIA since his failed 2008 run for president anyway. His recent disavowal of Mr. Trump seemed a little late by Straight Talk standards but perfectly in line with his current persona. Had he blasted Mr. Trump before his August primary, he might have sunk his own reelection bid, but, of course, he didn't.

Senator McCain doesn't speak for everyone in the GOP caucus, but his Republican colleagues certainly haven't objected to his remarks about how a Clinton Supreme Court nominee might fare next spring. Democrats ought to take this to heart. Unless their party recaptures a Senate majority, the Supreme Court may become as ineffective as Congress. And it isn't just the Scalia vacancy; several other seats may be open within the next four years. That's a potential Constitutional crisis that can be averted if Congress simply does its job and considers Supreme Court nominees on their merits. Short of that, Democrats had better wrest control of the Senate or it could be a long and dysfunctional road ahead.