- The Washington Times - Wednesday, November 16, 2016

ANALYSIS/OPINION:

Mitch McConnell took a gamble and won: President-elect Donald Trump will be able to name Supreme Court Justice Antonin Scalia’s replacement, preserving the ideological balance of the highest court.

The Senate majority leader took a hard line after Mr. Scalia’s death in February, stating clearly that there would be no confirmation hearings to the Court until after the election. A less riskier option would’ve been to take — and then delay — the hearing. The Kentucky Republican refused.

“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country,” Mr. McConnell said at the time.

Immediately, he was under fire by President Obama, Democratic Congressional members, presidential nominee Hillary Clinton, and some #NeverTrump Republicans, who believed Mr. Trump would lose the general election and the GOP would be better off with a moderate pick like Merrick Garland on the court.

In August, when Mrs. Clinton was leading by double-digits in national polls, NBC News asked Mr. McConnell if he would cave. Mr. McConnell remained firm.

“The leader has been clear — the next president will make the nomination for this vacancy,” Mr. McConnell’s deputy chief of staff Don Stewart told the news agency.

At the time, many Republicans were defecting from Mr. Trump, and Democrats were using that as leverage to push Mr. Garland’s nomination through.

“Congress is likely to be in session for a grand total of 20 days between now and the election, and it’s clear that confirming Garland a vote is the only concrete, news-driving step that Republicans can take to separate themselves from Trump,” a top Democratic Senate official told NBC in August.

In September, when the Obama administration decided to reignite the interest in the Supreme Court nominee, Mr. McConnell, again, didn’t buckle. He’d galvanized the support of outside conservative interests such as the National Rifle Association and Judicial Crisis Network, which said it spent at least $4.5 million that month on nationwide advertising against Mr. Garland.

“We’ve already made it very clear that a nomination for the Supreme Court by this president will not be filled this year,” Mr. McConnell said in September when asked if he’d take up Mr. Garland in a lame-duck session of Congress if Mrs. Clinton won.

Undoubtedly, Mrs. Clinton would’ve chosen a more progressive choice than Mr. Obama had — and perhaps younger than the 63-year-old Garland. She suggested as much in an October debate.

“I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say: The Supreme Court should represent all of us,” Clinton said, referencing decisions on abortion and campaign finance by name.

“I would hope that the Senate would do its job and confirm the nominee that President Obama has sent to them,” she added.

It turned out, the issue motivated the conservative base, and helped secure Mr. Trump’s win. National exit polls reflect that 21 percent of voters said the Supreme Court was a major factor in how they voted.

Mr. McConnell looked like a conservative hero, and the Court was saved. Even if Mrs. Clinton would’ve won, Mr. McConnell would’ve energized his conservative base by waging the fight.

But don’t expect things to get any less contentious.

Although Republicans hold the Senate, it’s likely Democrats will filibuster Mr. Trump’s Supreme Court pick. Mr. McConnell will then have to make a hard decision: use the so-called “nuclear option,” which Senate Democrats used in 2013 to counter judicial blockades, or try to broker a broader consensus.

There’s no doubt what former Senate Majority Leader Harry Reid would do — he led the 2013 revolt to enable judicial and executive nominees to be confirmed with just 51 votes instead of 60.

I hope it doesn’t come to that. But one thing’s for certain: Payback’s a you-know-what.

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