A Republican Senate Could Empower Moderates

(Bloomberg Opinion) -- Judge Ketanji Brown Jackson will be confirmed for a seat on the Supreme Court later this week, which will raise President Joe Biden's total to 59 judicial nominees confirmed. We learned a bit about the potential lay of the land next year if Republicans gain a Senate majority and Mitch McConnell tries to shut down the process.

Everyone expects McConnell and a Republican majority to simply stop confirming judicial nominees (and executive-branch nominees, for that matter). That's what Republicans did in 2015 and 2016, culminating in a successful effort to ignore a Supreme Court nomination.

The first thing to know about this strategy is that it's in no way normal. McConnell didn't totally shut the door to the courts, but he came close; leaving aside the Supreme Court vacancy, the Senate confirmed only 22 of Barack Obama's nominations in those two years. Eight years before that, when Democrats gained a Senate majority during the last two years of George W. Bush's presidency, the Senate confirmed 68 district and circuit court nominees — more than three times as many. It's true that Democrats in 2007-2008 had a smaller majority (with 51 senators) than Republicans had in 2015-2016 (54), but then again larger Democratic majorities confirmed even more judges during Ronald Reagan's and George H.W. Bush's last two years in office.

Similarly, since 1900, Democratic majorities have confirmed 12 Supreme Court justices nominated by Republican presidents. Although three were defeated, all of them received full consideration and a final full Senate vote. The only time that a Democratic president nominated anyone for the high court while Republicans held a Senate majority was Obama's nomination of Merrick Garland. Republicans didn't give him a hearing, let alone a vote.

So everyone expects at least as much obstruction as last time if Republicans gain another majority. What hasn't been clear, however, was whether extraordinary obstruction would even be necessary. After all, if Republicans were united in opposing anyone Biden nominated, then McConnell could allow hearings, debate and votes, knowing that any nomination would still be doomed. Given increased partisan polarization, that possibility is becoming more and more plausible — from both sides.

That situation looks less likely now. With Republican Senators Susan Collins, Lisa Murkowski and Mitt Romney all now supporting Jackson, it seems likely that, barring a Republican landslide, floor majorities will be available for at least some Biden nominees. Jackson, after all, appears to be a mainstream liberal judge, and has the partisan benefit for Democrats of also being 51 years old, but still managed to win those three Republican votes. It's not hard to believe that in a Senate with 51 or 52 Republicans, Biden could find nominees who could at least match that.

What all this means is that if Republicans take a slim majority, then Collins, Romney, and Murkowski (if she returns; she's up for re-election this year) will have to decide whether to exercise their leverage and force Republicans to be more responsible than they were in Obama's last two years. Indeed, that leverage can work both ways; in exchange for pushing Republicans to allow votes, they could also push the White House to send up nominees who have more moderate records or are older than the typical judge or both.

That's what the relatively moderate Republicans could do. It's not what happened last time around. Obama was willing to compromise; that's why he picked Garland, an older moderate, for the 2016 Supreme Court vacancy. Yet there's no record of any objections to McConnell's blockade. Perhaps things will be different with Romney around. Perhaps not.

The fate of judicial nominations in the next Congress isn't only about ideological balance on the courts. It's likely to be a test of whether Republicans can govern should they win majorities in the House (very likely) and Senate (more likely than not as of now). After all, judicial vacancies as a fallout of partisan battles mean slower justice for all. Vacancies in executive-branch departments and agencies don't just keep presidents from advancing their preferences; they also mean the government doesn't work as well.

And then we'll see whether Congress is able to perform its other basic tasks, such as passing yearly spending bills, emergency disaster appropriations and other must-pass legislation. They'll have to overcome not only a fraction of the Republican conference flat-out opposed to compromise, but another large group terrified of allowing any distance between themselves and the radicals. That combination drove a skilled House Republican leader, John Boehner, to flee the chamber. Things have only gotten less manageable since. If we are in for a Republican Congress, it's going to take impressive abilities to avoid multiple fiascos.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.