The Importance of ‘The Three Nos’

Federal appeals court judge Merrick Garland, center, stands as President Barack Obama, right, and Vice President Joe Biden applaud as he is introduced as Obama’s nominee for the Supreme Court in the Rose Garden of ... Federal appeals court judge Merrick Garland, center, stands as President Barack Obama, right, and Vice President Joe Biden applaud as he is introduced as Obama’s nominee for the Supreme Court in the Rose Garden of the White House, on Wednesday, March 16, 2016, in Washington. Garland, 63, is the chief judge for the United States Court of Appeals for the District of Columbia Circuit, a court whose influence over federal policy and national security matters has made it a proving ground for potential Supreme Court justices. (AP Photo/Evan Vucci) MORE LESS
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I wanted to follow up on David’s point from yesterday about the first few hours of the Merrick Garland nomination. Last month, not long after Justice Scalia’s death, we discussed the importance of ‘the three nos‘ and the way they suggested not the strength of the Senate Republican position but rather its brittleness. Just to review, ‘the three nos’ are the veritable catechism Senate Republicans devised and adopted in the days just after Justice Scalia’s death: no vote, no hearings, no meetings. Republicans could have adopted a posture of outward good faith, hold hearings but find deal-breaker problems with any nominee Obama sent up and simply run out the clock. But once they opted for denying Obama another nomination outright, something like ‘the three nos’ became essential because it was important to end the discussion, end the debate as soon as possible, especially before it dragged into the heart of the election season.

However many made up rules or traditions or logic games Republicans want to come up there’s no getting around the fact that this is an unprecedented action – brought about at least in part by the extraordinarily high stakes over Justice Scalia’s replacement. Coming up with some prepackaged nonsense is good to give Republican partisans something to say on TV when they’re pressed on this. But nothing can hide the novelty of this gambit. There’s also little question that this is politically damaging for Republican senators in competitive elections this year. Republicans may not admit it publicly. But I guarantee you this is taken as a given.

To understand the nature of the damage, we need to breakdown the different segments of a statewide electorate. Republican partisans aren’t a problem. Most will likely support the strategy simply because of the stakes involved and the chance to deny Obama a third Justice on the Court. Partisan Democrats are irrelevant since they’re already voting for the Democratic challenger. But in blue or purple states, Republicans have to win loosely affiliated swing voters and even some fair weather Democrats to win. Those voters may not care terribly much about the Supreme Court let alone shifting the balance of the Court in a liberal direction. But these voters are highly susceptible to ‘why aren’t you doing your job?’ messages.

We all remember high school civics or at least School House Rock. When there’s a vacancy on the Court, the President nominates a Justice and the Senate approves or disapproves the nomination. That’s how it works. So if you’re in the Senate why aren’t you doing that? There are several explanations. But they don’t make much sense unless you are highly ideological or highly partisan. If that’s not you’re audience, you are left with a candidate not able to give a very good answer to why they’re not doing what appears to be a key part of their job – and also asking to be reelected. Add to that that swing voters generally like to see independence of party discipline and it’s a bad political mix.

None of this is controversial. It hurts. The question is how much it hurts. And however much it hurts, the key for Republicans is to have it take up as little of the campaign dialog as possible. There’s no good political day discussing or explaining this gambit. The key is to end the debate, stop talking about it as soon as possible. And the debate only ends when both sides agree that Barack Obama will not appoint Justice Scalia’s successor and the press loses interest.

That’s where ‘the three nos’ come in. The ‘three nos’, the flat refusal to go through with even the most initial and customary parts of the process, is meant to starve the debate of oxygen and end the discussion. That is so important because we are talking about an extremely well-worn, century or two-century old (depending on your definition) process, that has a natural momentum toward completion.

If you’re a Senator and meet with Judge Garland to discuss his nomination, you’ll be asked what you thought of him. If you say that he seemed like a distinguished judge and it was a pleasant meeting (and it’s hard not to since the key senators have already voted to confirm him), the next question is obvious: So will you support a hearing on his nomination? If the answer is no, why? In a sense it’s not different or harder than any of the other flat refusals. But each refusal is just as hard to explain as the last one to anyone who does not bring a deep level of ideological or partisan commitment to the question. It’s that death of a thousand cuts politically, a slippery slope because, as I said, the process has a natural momentum forward. And it keeps the story going and going and going. Of course, you can just say ‘no’ at every point. But doing so delivers a never-ending string of hard to answer campaign trail questions.

This was the problem GOP and conservative court strategists pointed to at the outset and wrote detailed policy memos explaining the need to “starve the media of this story” by avoiding any discussion of “the credentials of the nominee.”

What’s notable is that even in the first day of the Garland nomination, ‘the three nos’ started to break down. Here’s a list of the Senators who have already said they are willing to meet with Judge Garland. More importantly, the big news this afternoon was that Chuck Grassley, a pivotal figure since he’s the Chairman of the Judiciary Committee, also agreed to meet with Garland – despite that fact that he’d appeared totally down with ‘the three nos’. Today’s he’s upset that the White House put out word that he’d agreed to meet with Garland – which basically amounts to him saying, ‘Hey, please don’t make this messaging highwire act any harder than it already is!’ Good luck.

Senate Republicans also managed to back themselves into arguing that while they won’t hold a hearing or a vote on Garland’s nomination, if the Democrats win the presidential election, they’ll vote him through during the lame duck period between the election and the inauguration. That isn’t any more nonsensical than the rest of the arguments we’ve heard. But remember, the Republican argument has been that they want the public to have a choice in the nomination by leaving the decision to the next president. But now it turns out that if they lose the election, they’ll go ahead and confirm Obama’s pick, denying the choice to the next president. It makes no sense, as a number of Republicans were arguing today to their frustration.

Now, from one perspective, Mitch McConnell can be caught in a million contradictions and awkward moments over the next ten months. But so what? He’s the Majority Leader. The Majority Leader decides whether to hold a vote. And without a vote, Garland never gets to the Supreme Court. On that front, McConnell controls everything that matters. Nothing can move him if he doesn’t want to move. What McConnell can’t control is the battle for control of the Senate next year, one which will be played out mainly in blue states and in which the battle for public opinion is all important.

It seems to me quite likely that with several Republican senators already teetering on the edge, the daily bad news of this drip drip drip is more than likely to deliver the Senate to the Democrats. And as those vulnerable senators (and perhaps others) get more and more squeezed, they’ll push to get out of under this burden. Not that that will be easy since allowing Garland through would cause a huge backlash on their right. In any case, this is what ‘the three nos’ was meant to avoid. And it’s why Senate Republicans put up increasingly hyperbolic threats to try to prevent Obama from making a nomination or – more likely – scare any nominees out of accepting. So if ‘the three nos’ were going to be this hard to sustain why did McConnell go down this path?

I think the answer is that the need to block an Obama appointment was seen as having such total importance that something that to be tried. And this was the best, though not very good, plan. Also, Republican partisans and operatives push for this seemed impossible to resist. Who knows how it plays out? But at this point, just one day in it’s not holding up well at all.

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