Strategy and the Garland Nomination

George Will's column on the Garland nomination sparks a few thoughts.

Merrick Garland Supreme Court NominationThe title of George Will’s latest column asks a rather important question:  Do Republicans really think Donald Trump will make a good Supreme Court choice?

Trump’s multiplying Republican apologists do not deny the self-evident — that he is as clueless regarding everything as he is about the nuclear triad. These invertebrate Republicans assume that as president he would surround himself with people unlike himself — wise and temperate advisers. So, we should wager everything on the hope that the man who says his “number one” foreign policy adviser is “myself” (because “I have a very good brain“) will succumb to humility and rely on people who actually know things. If Republicans really think that either their front-runner or the Democrats’ would nominate someone superior to Garland, it would be amusing to hear them try to explain why they do.

In truth, I don’t expect such an explanation to be forthcoming.  Rather, I expect an ongoing cavalcade of rationalization of why a hearing simply cannot be held (because elections or lame duckery or something) with very little about what alternative futures will look like.

If we were dealing with actors capable of assessing likely costs and benefits, the Garland nomination should, actually, lead to swift confirmation.  It is a nomination that takes into account the existence of divided government and that which is both unknown and probable regarding the November elections.

To wit:  the nomination of an older, well-known, and relatively moderate judge is an acquiescence by the President that his party does not control the Senate.  The fact that the nominee is not even more moderate* is a nod to the fact that the odds are that a Democrat will occupy the White House in 2017 (and that there are likely to be more Democratic votes in the Senate).  However, there is still some basic bird in the hand versus two in the bush thinking here, insofar as there is no guarantee of either outcome.  Trump could win in the November and the Senate could remain just as Republican as it is.  Plus, regardless of ideological long-term goals, I have little doubt Obama would prefer to be the one to do the nominating rather than letting another president do it, even if that president is a Democrat.

The Republicans ought to be willing to accept Garland given the conditions I just described.  They are unlikely to get a better nominee from a Democratic president (and, quite frankly, even if a better option was possible to get it they would have to be willing to be active in the process, which they are steadfastly refusing to do).  However, they are instead willing to take a pretty huge gamble.  McConnell’s refusal to address an Obama nominee has become more precarious now that a Trump nomination seems almost certain, but since the party is now so divided there appears to be no way to forge a way forward.  The Republicans in the Senate are now forced to ride this out and hope (although exactly for what they are hoping is unclear, at least in terms of realistic outcomes).

Even more than when I wrote the following last month, I think the GOP is taking a huge gamble:

Still, I think it is worth noting that it is a roll of the dice insofar as the next president could not only be a Democrat (indeed, if one is objective about it, the odds are better that it will be a Democrat than a Republican—just go look at the electoral math) but, further, there is the real chance the Republicans will have less Senate seats after November (and hence, less influence over the vacancy).  As such, the safer play would be to try and leverage the current situation for a more moderate Justice in the here and now as opposed to running the risk of having to accept a more liberal one in early 2017.

Will’s column (and the run down of the calculations above) also illustrates that we are in a period wherein it is increasingly problematic to use “Republican” as a term that reflects a coherent collective.  In truth, any attempt to refer to a large political entity as if it has only one opinion or position is incorrect but we usually can live with that ambiguity and understand that we are fudging a bit linguistically for the sake of direct conversation rather than having every utterance on the subject require footnotes and caveats.  However, at this point in time asking  ”Do Republicans really think Donald Trump will make a good Supreme Court choice?” raises the question of what does one mean by “Republicans?”  If we are talking the long-term movement conservatives like Will, the answer is clearly no.  If we are talking about the party as manifested in the Senate, I am not sure they are thinking beyond power calculations.  Further, the party was already riven in multiple directions prior to this election.  If we are talking about the primary voters who are propelling Trump to the nomination, heck yes they think that Trump will make a good choice.  But this illustrates the crisis the party is in right now:  Will and Trump supporters, though both nominally Republicans, are effectively in different parties.

An interesting question is this:  what will Senate Republicans do if it becomes clear that Trump is going to lose in November?  Does that change their calculations about Garland because I doubt President Hillary Clinton will send them as palatable a choice.

*And yes, this point (as is always the case) is debatable.  But, given the range of options, this is as good a pick as the GOP could hope for under prevailing circumstances.

FILED UNDER: Campaign 2016, Law and the Courts, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. stonetools says:

    You know you are big footing Doug’s post, right:-).
    In terms of game theory, this must be so fascinating for a political scientist.
    The Republican Senator who is not facing a challenge can afford the maximalist position-for now.
    The Republican Senator who is facing a general election challenge wants to be flexible, since their challenger can run against them on this. But to get to the general, they have to guard their flank against a primary challenger attacking them for being a RINO!
    Yet another complication for the Republicans: in order to prevent a recess appointment, a sufficient number of Republicans are going to have to stay in DC during the recess or face quorum calls. (Harry Reid and Joe Biden will see to that.) That will cut down on campaign time, at the time when 24 Republicans are defending seats.
    All Republicans are going to face pressure if Obama puts the nomination on the clock, i.e. says that the Garland nomination will be withdrawn at or before the general election.
    Right now Obama holds all the cards, and is probably just going to ramp up the pressure steadily over time.

    Now Doug doesn’t seen the Republicans letting through Garland, but I could see it happening. The chances aren’t good, but they aren’t the worst, either.




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  2. Joe says:

    It would be nice if the Senate Republicans or Congressional Republicans as a whole could work toward some long term game plan about how to accomplish affirmative goals instead of cowering in their offices afraid of their base. I think we tend to imagine that people in high offices have some innate wisdom that comes with being in high office. Unfortunately, a lot of people in positions of leadership don’t have any exceptional wisdom. They are just as clueless as the next guy, trying to get through one move at a time. The results are actions, like McConnell’s hearings embargo, that have a lot of immediate bravado, but no forward-looking strategy attached. If politics is a game of chess, these guys are sliding their Queen to the other end of the board, refusing to take their next turn, and then patting each other on the back for taking strong action. As long as they don’t lose, they can congratulate themselves for winning so far.




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  3. @stonetools:

    You know you are big footing Doug’s post, right:-).

    Not my intention 🙂




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  4. Scott F. says:

    Does that change their calculations about Garland because I doubt President Hillary Clinton will send them as palatable a choice.

    The “let the people decide” rhetoric will be hung around the Republican leaders’ collective neck should Mrs. Clinton prevail in November and rightfully so. Madame President would act to push the Court as left as she could possibly muster.

    I agree with this notion that the Republicans seem unable to think beyond the short term power calculations, though I don’t think it’s just the GOP elites doing so. Certainly, both the Trump and Cruz factions are more interested in seizing power today over governance of an entire populace tomorrow. The death of compromise and reason on the right has been metastasizing over a long time and I find it fascinating that no force within the party seems to have any power to arrest its advance. The 2012 election post-mortem identified a lot of the political realities, but there was absolutely no appetite for what might have been effective remedies.

    I’m coming to believe that a pendulum swing back toward the center is no longer feasible for the GOP. It’s going to have to crash and start over.




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  5. Gustopher says:

    @Joe: They moved their Queen to the end of the board, and then shouted “King me!”

    I mean, it sounds awesome. But it’s unprecedented and self-destructive.




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  6. gVOR08 says:

    If we were dealing with actors capable of assessing likely costs and benefits

    @stonetools: is right. We are dealing with rational actors, who are once again demonstrating that party loyalty, much less public service, has little if any place in their calculations. I also agree with Stone that Garland will likely be confirmed. I don’t see how, but a) he must have explained the plan to Garland, who bought it, and b) how many times now has Obama gotten the GOPs to throw him in the briar patch?




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  7. Scott F. says:

    On a side note, people scoffed at Obama in 2008 when he suggested he might be a transformational president a la Reagan.

    “I think Ronald Reagan changed the trajectory of America in a way that Richard Nixon did not and in a way that Bill Clinton did not.”

    Should the Republican Party implode over this election, how prescient was Obama? It’s been a delayed reaction and he won’t have gotten to preside over any of it, but the change in trajectory will be inevitable.




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  8. stonetools says:

    @Steven L. Taylor:

    Some questions for you, Steve, as our resident Poli Sci expert:

    1. Do you think Obama made the right pick in choosing Garland, or should he have gone with a young, liberal pick?

    2 Do you think the Republican Senators are rational political actors(in which case they will cave if Trump clinches the Republican nominations ) or are they ideologues , who will insist on this “no hearings in an election year” principle that McConnell just pulled out of his behind this year?




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  9. stonetools says:

    @gVOR08:

    I’m not sure Garland will be confirmed but I think there’s a chance. The course of the Presidential race may be the biggest factor. I think the most likely turning point is the Republican convention. If turns out to be a 1968 type disaster, then I expect a sudden about face by the Senate Republicans on Garland’s confirmation.




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  10. Ratufa says:

    @stonetools:

    I’m not Steve Taylor, but I think a moderate like Garland is an good choice in this situation, particularly if the objective is to put the Republican Senate in a bind.

    Republicans do not have solid ideological grounds to reject Garland, as they might with a more liberal nominee. At the same time, he’s not a Scalia-like conservative, so he’s unacceptable to many people in the Republican base, who strongly want another Scalia, so the court doesn’t swing further to the left (from their point of view).

    So, Republicans have two choices: They can fail to confirm him, which is not going to play well with some of the more middle-of-the-road Republicans (people like Joyner), who are already not too happy with the GOP. Or, they can confirm him, which will infuriate parts of their base — many of whom are also very unhappy with the current state of their party.

    For the Democrats, if Merrick is confirmed, Scalia is replaced by someone much more moderate — perhaps they could have done better after the election, but, Garland is an improvement over Scalia. Hillary (if elected) is likely to have opportunities to make more liberal SCOTUS nominations of her own (particularly if the Dems win control of the Senate this election), and it’s possible that the Garland nomination may help in achieving those goals, particularly in close Senate races.




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  11. Slugger says:

    From the early hours of his first term, there has been an effort to deny Obama’s legitimacy. These were not based on analysis of policy differences, but there were cries about him putting mustard on a hamburger, moving a bust of Churchill, and having a wife who thinks children should eat their veggies. Then they raised the ante by raising issues about his birth and religion. This was spiced up with media panics about Ebola and ISIS. During this time, George Will wrote a column disdaining Obama for excessive use of the first person singular pronoun; an accusation that did not withstand the scrutiny of people who know how to count. Now, Mr. Will realizes that the crazies were given the keyes to the GOP car, got behind the wheel, and drove it into a ditch. O.K. it is my country, too. I am willing to help get you back on track, but please be reasonable not absolutist and obstructionist. And George: STFU.




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  12. stonetools says:

    Interesting Salon article take here:

    The election strategy by which McConnell hopes to keep Republican control of the Senate — and his own office as majority leader — depends on preventing voters from associating their Republican senator or Senate candidate with Trump. The Democrats in turn will try to superglue any Republican to Trump. But the Democrats have a problem of their own: Most Republican officeholders aren’t affiliated with Trump and aren’t doing anything to help him. In order for superglue to work, you need a large contact surface.

    The united front against Garland could change that. You can imagine one Democratic line of attack: They would declare that the Republican candidate wants to trust Trump to fill a Supreme Court vacancy – and that voters have to decide whether they love Trump as much as their Republican Senator or Senate candidate evidently does.

    The attacks would be effective because they would obviously be accurate.

    Seems to me the rational voter votes not only against Trump, but also against anyone who thinks Trump should be trusted with a SCOTUS pick. Over to you, Republicans.




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  13. Argon says:

    If only the GOP would listen to Steve, they wouldn’t be in the mess they’re in.

    But then again, if they listened to Steve, they wouldn’t be the GOP.

    It’s like that parable of the scorpion and the frog. The scorpion has to follow its true nature, even if it kills itself in the end.




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  14. winfieldscott says:

    So basically you are saying, “why is it that Obama is much smarter than my party strategically?”




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  15. Pch101 says:

    However, they are instead willing to take a pretty huge gamble.

    The Republicans are betting that using the Supreme Court as a wedge issue can help to get them to 270. Simultaneously, they are aware that the failure to use the Supreme Court as a wedge issue increases the odds that the social conservatives who are demanding a brawl won’t give them the votes that get them to 270 if they are denied their slugfest. The fight is more important than winning, symbolism more valuable than the results.

    That being said, it is going to be very difficult for the GOP to get to 270 under any circumstances if one begins with the 2012 map and starts looking for opportunities for gains. You have to wonder how many Republicans are aware of this. (Witness the shutdown fight, in which Cruz misled the Tea Party idiots in the House, a group of dolts who managed to get elected without understanding the basics of how government works.) But again, the symbolism of the fight is more important than the outcome.




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  16. Ravi says:

    I think it is much simpler than that. The Senate Republicans are rational political actors, but their utility function doesn’t make much sense to a lot of people and, in particular, to most people who follow politics.

    They know that absent a miracle (a Republican Senate *and* a non-Trump Republican President or President Trump making a pick they like) they’ll hate the next Supreme Court justice and the balance of the court will shift substiantially to the left. They even understand that obstructing Garland makes President Clinton and a Democratic Senate more likely, which will lead to a whole host of appointments they don’t like, not just the next Supreme Court justice. What most people don’t understand is that they just don’t care that much.

    To Senate Republicans keeping their fingerprints off of the next Supreme Court justice is far more important than getting the ideological and age concessions Obama is offering with Justice Garland. From that perspective, the nightmare scenario isn’t President Clinton with a Democratic Senate (or President Trump doing anything), it is President Clinton with a *Republican* Senate. Then they’d have the painful choice between cooperating with President Clinton or blocking a Supreme Court appointment for years. I have my suspicions about what they’d pick in that case, but I suspect we won’t have to deal with that scenario.




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  17. Andre Kenji says:

    The real problem is that things like Heller and Citizens United results from a extremely Conservative Supreme Court. Even small changes in the balance of the court are going to threaten these precedents, so, there is a reason why Republicans are taking the gamble.




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  18. James Pearce says:

    @Ratufa:

    So, Republicans have two choices: They can fail to confirm him, which is not going to play well with some of the more middle-of-the-road Republicans (people like Joyner), who are already not too happy with the GOP. Or, they can confirm him, which will infuriate parts of their base — many of whom are also very unhappy with the current state of their party.

    Not meant really as criticism of what you wrote here, Ratufa, but I’m kind of getting tired of how people just seem to see this SC nomination in terms of “how it will play” with the various interests that make up our political factions. Politics is not just about optics; it’s also about power.

    I personally have taken to thinking that the “no nomination” position isn’t a bunch of Republicans scared of angering their base so much as it is a bunch of powerless incompetents whose lack of a post-Scalia plan was exposed the moment Scalia kicked the bucket. It’s like they thought he’d live forever.




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  19. Pch101 says:

    @James Pearce:

    Not sure what you’re expecting here. The party of tantrums is throwing another tantrum.

    This is exactly how the modern GOP exercises its power: By failing to make concessions, while trying to humiliate their opponents.




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  20. al-Ameda says:

    @Pch101:

    Not sure what you’re expecting here. The party of tantrums is throwing another tantrum.

    This is exactly how the modern GOP exercises its power: By failing to make concessions, while trying to humiliate their opponents.

    PLUS, base conservatives feel that their earlier tantrums – 2 government shutdowns, threatened default, repeated votes in attempst to repeal ACA – were not sufficiently supported by Republican Party congressional leadership, so McConnell has no incentive to remove that smarmy grin from his face.

    The Republican Party is to good governance as Kim Kardashian is to modesty.




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  21. Ratufa says:

    @James Pearce:

    Not meant really as criticism of what you wrote here, Ratufa, but I’m kind of getting tired of how people just seem to see this SC nomination in terms of “how it will play” with the various interests that make up our political factions. Politics is not just about optics; it’s also about power.

    Of course politics is largely (and one could argue for “totally”) about power. By saying that the actions of Republican senators wouldn’t “play well” with various members of the GOP coalition, I meant to imply that it might influence how some of those members voted, or whether they decide not to vote at all.




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  22. Barry says:

    @Steven L. Taylor: “Not my intention :)”

    …he says, grinding his huge, specially ordered spiked boots……………… 🙂




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  23. James Pearce says:

    @Pch101:

    Not sure what you’re expecting here.

    Some actual thought, not just the repetition of things we’ve read somewhere else.

    None of the right-wingers in my circle are threatening to primary anyone who holds hearings for Garland. They’re going along with the “no hearings” plan because their Senators think it’s a good idea and surely their Senators wouldn’t do anything stupid. Surely, their Senators have a plan B. Surely, their Senators wouldn’t intentionally do something that’s going to have negative long-term implications.

    In other words, this isn’t coming from the bottom up, this is coming from the top down.

    Maybe instead of thinking these GOP Senators are proposing “No hearings” because they worry about voter payback, we should think they are proposing “No hearings” because they know the voters don’t actually care too much about results.




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  24. Pch101 says:

    @James Pearce:

    In other words, this isn’t coming from the bottom up, this is coming from the top down.

    So you’ve decided that the base doesn’t want this because you personally know some Republicans who don’t? Anecdotes aren’t data.

    The hard right wants a fight. You can’t read hard right opinion sites and come away believing otherwise.

    If that isn’t enough, just look at the polling.

    Seventy-nine percent of Democrats and 62 percent of political independents favor hearings on Obama’s nominee. Republicans split on the issue, with 46 percent in favor, 49 percent opposed.

    http://abcnews.go.com/Politics/public-backs-scalia-replacement-hearings-poll/story?id=37527372

    Read that closely: Half of Republicans don’t want hearings. And wouldn’t you know that this is the half that is most motivated to support tantrums and to classify any Republican who doesn’t pitch a fit as a RINO.




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  25. James Pearce says:

    @Pch101:

    So you’ve decided that the base doesn’t want this because you personally know some Republicans who don’t?

    I’m not claiming to have any insight into “the base.” But I personally know, and like, and socialize with some actual conservative people who are in the base. How about you?

    Anecdotes aren’t data.

    Believe it or not, I’ve heard that too.

    Which part of your data contradicts my anecdote though? Just wondering.




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  26. Pch101 says:

    @James Pearce:

    It’s Republican SOP to play victim, complain about Obama’s attempt to destroy America through his divisive commie Kenyan unilateralism, and throw tantrums when they don’t get their way.

    What makes you think that it could have ever possibly been any different when it came to replacing their hero Scalia? What would have been astonishing if this hadn’t happened; the base does not want to cooperate with this president at all, for anything.




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  27. James Pearce says:

    @Pch101:

    It’s Republican SOP to play victim, complain about Obama’s attempt to destroy America through his divisive commie Kenyan unilateralism, and throw tantrums when they don’t get their way.

    If that’s your understanding of Republican behavior, might I recommend a revision?

    Like, don’t think the GOP’s 8 year long run of bad faith actually defines them as a party. It’s an opposition tactic based in weakness. Republicans were under the impression that the Bush administration would usher in a “permanent Republican majority,” but by all accounts, they left this country worse off than they found it. George W’s big foreign policy vision was for a missile defense system…at least until Al Qaeda flew into the WTC. Iraq, Katrina, the Great Recession.

    All these events, and a few others, undermined the party so much that they had no real choice but the become an anti-Obama-all-the-time organization. That is not, however, their future.




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  28. stonetools says:

    @Ravi:

    To Senate Republicans keeping their fingerprints off of the next Supreme Court justice is far more important than getting the ideological and age concessions Obama is offering with Justice Garland.

    Wow if true. That means Garland’s nomination was doomed from the start, and won’t happen even in the lame duck period.
    If this is this case, then it will at least be a clear lesson for the public and the Democratic Party once the curtain rises in January on what, hopefully, will be a Clinton Administration with a Democratic Senate majority.The lesson: expect that the Republican Senators, cowed by the base, cannot & will not negotiate on Supreme Court appointments
    I expect that Garland will have withdrawn his nomination , leaving Clinton with a free hand. The Senate’s first order of business will be to abolish or neuter the filibuster rule for Supreme Court nominations. HRC will then nominate the first of three Supreme Court picks, with swift confirmation from Senate, calls of “dictatorship!” from the conservative press, and handwringing from “why can’t she be bipartisan and nominate another Garland type pick, as a show of goodwill” crowd.I expect we will see Ginsburg retire in 2017 and Breyer in 2018. They don’t have to of course, but they’ve been watching the politics too and everyone understands that a Republican majority might return in 2018, which would mean no more Clinton SCOTUS nominations. I expect the order of picks will be Watford/Pillard/Srinivasan for Scalia/Ginsburg/Breyer but the order and even to a certain extent, the personnel doesn’t matter. What matters is that by October 1, 2018, there will be 5 liberal judges under the age of 60 in place at the Supreme Court. That will be game,set and match for a generation.




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  29. Grewgills says:

    @James Pearce:

    All these events, and a few others, undermined the party so much that they had no real choice but the become an anti-Obama-all-the-time organization. That is not, however, their future.

    If Clinton wins it will be their future with only a name change and change of standard insults as minor revisions. When you hold to tactic for long enough it defines you.
    Also, yes they did have a choice. It is/was the same choice that every opposition party has had since there have been opposition parties. The Democrats didn’t do this with Reagan and while there was some obstructionism and delay under W, it didn’t rise to near this level. There is always the choice to behave like grown ups and strike the best bargains you can in a given circumstance.




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  30. James Pearce says:

    @Grewgills:

    If Clinton wins it will be their future with only a name change and change of standard insults as minor revisions. When you hold to tactic for long enough it defines you.

    I wouldn’t count on it. Throughout the Obama admin, I’ve long thought the Republican 1% were just going to wait him out. If you’re net worth is in the 8 figures, you can afford to spend 8 years just collecting interest.

    The Republican 99%, on the other hand, can’t afford to indulge in anti-Obama/Hillary nonsense for another 4 or 8 years. They’re going to need some results.




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  31. Grewgills says:

    @James Pearce:
    Wanna bet?




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  32. Pch101 says:

    @James Pearce:

    don’t think the GOP’s 8 year long run of bad faith actually defines them as a party. It’s an opposition tactic based in weakness

    Your arithmetic is faulty. Have you already forgotten Kenneth Starr?




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  33. Blue Galangal says:

    @James Pearce: Not only do they not care about the results, Republicans have paid no national political price at the ballot box for their ongoing tantrums. With that in mind, I can see that the senators figure why would the electorate start to hold them to account now, and over a SC justice? If not getting Social Security checks didn’t get them out to vote, if block granting Medicaid didn’t get them out to vote, if the possibility of losing their health insurance didn’t get them out to vote, why would this?




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  34. Padang says:

    It’s hard to come by educated people in this particular
    topic, however, you sound like you know what you’re talking about!
    Thanks




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