Senators, think!

Photographer: Chip Somodevilla/Getty Images

Hey, Republicans. Think Before You Obstruct.

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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In deciding what to do about President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court, Senate Republicans should think about only two things. One is this:

Source: Iowa Electronic Markets

That's a chart from Iowa Electronic Markets that tells us that bettors believe that the Republicans are very likely to lose control of the Senate.

The other is this:

Source: Iowa Electronic Markets

That chart from the same prediction market tells us that those same bettors believe that the Democrats’ chances of taking the White House are pushing 70 percent.

Prediction markets can be wrong. A little over a month ago, they had Marco Rubio as the overwhelming favorite to become the G.O.P. nominee. But this doesn't seem like the moment to bet that the markets are mistaken. If Senate Republicans make good on their threat to refuse to approve any nominee, the chances are that the vacancy will be filled by President Hillary Clinton and confirmed by a Democratic Senate, right after the caucus votes to abolish the filibuster.

That’s all that should matter. There’s been a lot of talk that the Senate has a constitutional obligation to hold a hearing and a vote on whatever nominee the President sends up. My own view as a constitutional scholar is that this is nonsense. In the system of balanced and separated powers, the Senate is involved in a constant struggle to assert its own prerogatives. It can vote or refuse to vote whenever and however it pleases. One might think that the G.O.P. was childish in its preemptive insistence after the death of Justice Antonin Scalia on Feb. 13 that no Obama nominee will be confirmed; or one might think the party was being tough and clever. Either way, a refusal to act would fall well within the Senate’s discretion.

But that was then. In the month since Scalia died, the political world has been upended. For conservatives, self-interest should in this case weigh more heavily than prerogative. The Republicans are in a box, and their own primary voters have put them there. Donald Trump’s presidential campaign has excited a significant subset of G.O.P. voters, but their votes are the reason the party stands an excellent chance of losing the Senate.

Merrick Garland is an experienced lawyer and, I can say from personal experience, a lovely man . Although fairly characterized as a liberal, he is certainly no radical. He has long experience as a prosecutor and corporate lawyer, and has written thoughtfully and moderately about administrative law. From the point of view of the G.O.P., he’s as good a Democratic nominee as they are likely to get. Of course the Senate has the ability to bottle him up nevertheless, hoping that the election swings in their favor.  But this would not seem the best moment for the party to roll the dice.

  1. An example of his loveliness: My first novel included a character named Oliver Garland, a fictitious judge on the United States Court of Appeals for the District of Columbia Circuit -- the very court where Merrick Garland sits. I had started the novel before he joined the court, and, as any writer can tell you, changing character names once you're deep into the writing can be wrenching. I contacted Merrick Garland through a friend, and he was entirely gracious about the whole thing.

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