Senate Majority Leader Mitch McConnell made a big mistake when he declared that Republicans would not confirm any Supreme Court nominee appointed by President Obama in this election year. For starters, it makes Republican senators, several of whom are defending closely contested seats in purple states, look purely obstructionist and opportunist. The same goes for the GOP presidential candidates who are treating the question of who will succeed conservative Justice Antonin Scalia as nothing but political.
More importantly, Republicans are missing an opportunity to lock in a center-right justice before a Democrat gets elected president. If McConnell and Senate Judiciary Chairman Chuck Grassley were shrewd, they would play to Obama's vanity and signal that they could live with a moderate. That way the seat, instead of going to a liberal who would deliver progressives a long-awaited 5-4 liberal high court majority, would go to another Anthony Kennedy-style moderate conservative. That would create an alignment of three conservatives, four liberals, and two swing votes.
Would Obama have the nerve to resist this? As companion pieces in the Prospect by Peter Dreier and Margo Schlanger suggest, the court's current 4-4 deadlock actually helps liberals, because so many lower court rulings cut in a more liberal direction. They would have been struck down by a 5-4 majority had Scalia lived through the end of the current Court term in June. But now the lower court rulings, which tackle issues ranging from affirmative action to union representation and abortion rights, will stand.
That leaves Obama with the upper hand, if he will use it. He should be in no rush to appoint a centrist. Any nominee embraced by McConnell and his GOP allies would almost certainly disappoint progressives. Obama would do better to appoint a highly-qualified progressive, split the GOP Senate caucus, and dare Republicans to be obstructionist.
