I have argued that the Republicans are correct in refusing to consider any appointment made to SCOTUS by President Obama. Judge Garland is a smart and decent man so far as I have any reason to believe, but that is not the point. The point is that he is all but certain to be the fifth vote for anything important on the Left's Supreme Court agenda. To take two examples, the idea that either Heller or Citizens United would survive Garland's elevation is just wishful thinking.
As Steve Erickson has noted, the Court now occupies such an outsized place in American life that its view of its role, of the Constitution, and of democratic self-rule has become too important to just pass over. This is not a matter of partisan "bickering" or payback. It's about the direction of American law itself.
It's quite true that uncertainty abounds about who will succeed Obama, and what that person would do about Supreme Court nominations. The Republicans are surely taking a risk that HRC will be elected and choose someone farther to the left. They are also taking a risk with Donald Trump (although Trump's named Supreme Court candidates -- Judges Diane Sykes and Bill Pryor -- would be excellent choices).
But hold on there. The risk is not as big as it's being advertised.
The key is timing.
For now, the correct strategy is exactly the one Sens. McConnell and Grassley have announced. But now does not last forever. As is often said, the only certainty is change. We'll know a lot more after the nominating conventions (like who the candidates actually will be and whether there will be third parties on either the left or right, or conceivably in the middle). We'll know more still as the campaign unfolds. We'll know even more as polling occurs in the run-up to election day. And of course, we'll know a whole lot on the morning of Wednesday Nov. 9 (except in the unlikely event of a 2000-type virtual tie).
At any of these points, Republicans could re-evaluate. If, for example, all the polls and veteran observers think the Republican candidate is 10 points behind a week before election day and going nowhere, the Senate leadership can put the nomination on the floor then and there and vote to confirm. But if the Democratic candidate is the one 10 points behind -- or, say, has just had her mug shot taken -- they'd be crazy to have jumped ship anytime before then.
Under the Constitution, by the way, the new Senate (whose make-up is also unknown at this point) is not seated until January 3, 2017, unless otherwise designated by law.
In other words, the risks Republicans run by their current strategy are overstated (deliberately so, of course, by those who want to hector them into giving away a generation's worth of Supreme Court precedents). The stakes are too high, the uncertainties too numerous, and the chances of eventual success (though dicey) too great, for Republicans to cave.
If you want to be reminded about the foolishness of counting those electoral chickens before they hatch, just ask President Dewey.
My regret about the GOP strategy so far is that they did not or were not able to follow Aaron Burr's advice to Alexander Hamilton in Hamilton The Musical: "Talk less, smile more."
I totally agree: "The risk is not as big as it's being advertised."
As I see it, the only way that the Court ends up with a justice to the left of Garland is by (1) Clinton becoming president; (2) The Dems obtaining a majority in the Senate; and (3) The new Senate majority exercising the Nuclear Option on Supreme Court nominees.
So the GOP must determine (at any given moment in time between today and Election Day) what are the odds of (1), (2) and (3) all transpiring?
If my analysis is correct, the only issues that remain on the table in this gamble are: Does the refusal to hold a hearing for Garland increase the chance of (A) Clinton becoming president and/or (B) the Dems controlling the Senate?
I should note that given Garland's supposedly very pro-prosecution leaning, there is a risk that a different nominee (by a Democrat or Republican president) might be to the left of Garland on at least some criminal justice issues that are important to the CJLF, even if he/she is to Garland's left on most/all other constitutional issues.
My risk analysis is way too simplistic ...
http://www.scotusblog.com/2016/03/judge-garland-and-the-senate-if-not-now-maybe-later/#more-240057
Actually, your risk analysis is just as good at one-tenth the length.
This is it in a nutshell: We'll see who controls the White House and the Senate after Nov. 8, and take it from there.
The only unanswered question is the one which George Will poses today as to whether the GOP is engaging in a form of magical thinking in assuming that President Trump will necessarily make a better choice to replace Scalia. Neither side actually wants to fill this seat right now-the vacancy is too good a campaign issue and my guess is that both sides see advantages in exploiting it. I wonder if the GOP could still have accomplished its strategy by proceeding with the process--chatting, interviewing, vetting, sending a questionnaire and asking for clarification, consulting experts, asking for documents, reviewing his opinions and writings, etc.--it could have been very stretched out and would have probably blunted some of the hypocritical self-righteous talk from the opposition.