Republicans say they have open minds on the Supreme Court. Don’t believe it.

Republicans say they have open minds on the Supreme Court. Don’t believe it.

Paul Waldman — Read time: 4 minutes

Columnist

As he prepares to fill a vacancy on the Supreme Court, President Biden has begun a campaign of cross-partisan outreach. He’s calling Republican senators, waxing poetic about the “advise and consent” clause, and wistfully recalling his days as chair of the Senate Judiciary Committee. He brought in the current chair and ranking member of that committee, Richard J. Durbin (D-Ill.) and Charles E. Grassley (R-Iowa), for an Oval Office meeting to get their input.

Republicans might complain that this is all for show; Biden will pick whomever he wants, and the sentiments of GOP senators probably won’t figure into his final decision. Which is true. But we also shouldn’t be fooled by Republicans into believing that any significant number of them — more than one or two — will vote for the nominee, no matter how wise and experienced she might be.

Along the way, however, they’ll be doing a lot of playacting. Before the nominee is announced, they’ll pretend they might vote for her, if Biden makes the right selection. Once she’s named, they’ll say they were disappointed in Biden’s “partisan” choice, but they’ll still claim they could see their way to supporting her, if she says the right things.

But they will be offered without shame or hesitation because Republicans are so practiced at spewing unending quantities of baloney during every Supreme Court nomination process.

The foundational lie they tell during every confirmation process is that they have no policy agenda they want the nominee to pursue on the court. They merely want someone who will respect the divine wisdom of the Framers and won’t “legislate from the bench.” Even today, Senate Minority Leader Mitch McConnell (R-Ky.) manages to say that “the cornerstone of a nominee’s judicial philosophy should be a commitment to originalism and textualism” without bursting out laughing.

Were they in such rapturous joy about Amy Coney Barrett’s ascension because they knew she would be a vote to overturn Roe v. Wade, along with the rest of the right’s legal agenda, and solidify a conservative supermajority? How could you even suggest such a thing!

Barrett was a blank slate with no preferences at all, they insisted. “I will object anytime anyone tries to attribute to you a policy position,” said Sen. Mike Lee (R-Utah) during her hearing. “Judges should not be policymakers,” said Sen. John Cornyn (R-Tex.), to which Barrett heartily agreed.

So this is a game they are practiced at, especially where they raise absurd hopes that they might support the right nominee. In 2016, then-Sen. Orrin G. Hatch (R-Utah) said that if President Barack Obama wanted them to look kindly on his nominee, he “could easily name Merrick Garland, who is a fine man.” Three days later, Obama did in fact nominate Garland — and Hatch and the Republican caucus refused him a hearing.

There are, it should be said, one or two Republican votes that might be in play. Sen. Lisa Murkowski (R-Alaska) now exists half in and half out of the GOP; she could vote for Biden’s choice. Susan Collins of Maine is always a possibility.

But if it actually matters? Let’s say Sen. Ben Ray Luján (D-N.M.) is unable to vote because he’s recovering from a recent stroke. And let’s say some other Democrat is likewise unavailable, meaning Republicans have an actual chance to kill this nomination and hold open the seat until the next Republican presidency just as they did six years ago. Do you think they won’t do it?

You might object that you’ve heard Lindsey O. Graham of South Carolina offer praise for one potential nominee, J. Michelle Childs, who comes from his home state. Don’t be fooled by that either.

Graham is saying nice things about Childs in part because the chances that she will wind up as the nominee are pretty small. First, she’s 55, a few years older than the other leading contenders; every president wants his pick to serve for as long as possible.

Second and probably more importantly, she was a partner at a firm that touts its work helping companies remain “union-free”; she represented employers in lawsuits filed by workers alleging various kinds of discrimination. That would be a huge problem with core Democratic constituencies.

When Biden picks someone else, Graham will say with the deepest regret that he could have supported Childs, but he can’t go along with this person.

Inevitably, Republicans will resort to the “Look what you made us do” justification: We might have supported this nomination, but Democrats forced us to oppose her. Maybe it was something Biden said, or Democrats on the Judiciary Committee asking questions we didn’t like, or an unfortunate segment on MSNBC that really made us mad. Or maybe they fear she’ll “legislate from the bench,” a sin of which only liberals can be guilty. Whatever it is, it isn’t our fault.

To be clear, the process is political on both sides. Both have outcomes they want from Supreme Court decisions, and neither party’s senators will give much support to a nominee from the other party. You can yearn for the time when highly ideological nominees such as Antonin Scalia and Ruth Bader Ginsburg would be confirmed almost unanimously, but those days are behind us.

And if you hear a senator claim they aren’t thinking about politics and the fate of vital policy questions when they vote on the next Supreme Court justice? Don’t believe them for a second.