President Obama’s choice of Merrick Garland for the vacancy on the U.S. Supreme Court, which he announced Wednesday morning, puts Senate Republicans in a bind or several binds.
Garland, chief judge of the second highest court in the land, is the least liberal and the eldest of the three final candidates Obama was considering, all qualities that make him about as good a choice from the Republicans’ perspective as they could hope to get out of Obama.
This is so clearly true that Republican Sen. Orrin Hatch, the most senior member of the Judiciary Committee, recently said when asked about the possibility that Obama would nominate the relatively moderate Garland:
“He [Obama] probably won’t do that, because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”
Guess again, Sen. Hatch. Now, if Senate Republicans don’t hurry up and hold hearings and confirm Garland, they risk the possibility of facing a much younger and more liberal nominee (if either Hillary Clinton or Bernie Sanders is the new president) and possibly with fewer means to stop that nominee (if the Republicans lose their Senate majority).
At the moment, the political future-knowers (among whom I do not count myself) believe that both of these are strong possibilities, especially if Donald Trump is the Republican nominee (also a strong possibility).
But Senate Republicans have a problem of their own making. Immediately upon the death of Justice Antonin Scalia, Senate Republicans invented a phony, brand-new, heretofore-invisible-but-nonetheless-deeply-revered Senate tradition that no Supreme Court vacancy should be filled during the last year of a president’s term. (I’ve written about this before. The senators who assert the existence of this principle have still not been able to point to a single instance in which a president declined to nominate or the Senate refused to consider a nominee to fill a Supreme Court vacancy based on this principle.)
Nonetheless, based on this principle, they declared — from Senate Majority Leader Mitch McConnell to Judiciary Chair Chuck Grassley on down to most of the Senate Republican caucus — that they would not vote on the confirmation of, nor even hold a single committee hearing to consider the qualifications of, anyone whom a certain incumbent president who happens to be in his last year in office might nominate.
Outside of the most loyal Republican ranks, this declaration has been highly unpopular and is deemed to have increased the chances that the Dems will wrestle the Senate majority away from the Repubs this fall. Even Grassley, who has been running regularly for office (state Legislature, then U.S. House, then U.S. Senate) since (this is not a typo) 1958 (!) without ever losing, is deemed to be in some danger of losing his seat this fall (although, to be honest, most of those who rate all the races still rate Grassley as likely to be reelected this year to a seventh six-year Senate term, at age 83).
Now, with today’s Garland nomination, and facing the prospect of a younger, more liberal nominee next year, a lot of Republicans probably wish they could hedge their bets and confirm Garland. Trouble is, their refusal to even hold hearings was declared not as a matter of holding the seat open in hopes of having a Republican president next year but as a matter of semi-sacred (if totally mythical) principle, which will make it awfully awkward if they reverse course, undiscover the previous principle and suddenly discover a new one, and try to rush Garland through the confirmation process.
If you torture the political calendar, you can come up with a different scenario, about which plenty of people in Washington have been thinking.
Suppose the Repubs stick to their principle for a few months, let’s say, just for the sake of discussion, until Election Day in November. Then they’ll know who the new president will be and how the new Senate will be composed. If they’re facing a new Democratic president and a Democratic Senate majority, they could quickly schedule some hearings on Judge Garland’s nomination and maybe even rush a confirmation vote through the Senate before the new president and the new Senate take office in January 2017.
Maybe that’s the secret plan. I certainly don’t claim to know. But if so, they should note that presidents have — and presumably President Obama could if the circumstances arose — withdrawn a Supreme Court nominee before the nominee came to a vote. Perhaps the next constitutional crisis will be over whether the Senate can confirm a Supreme Court nominee even if the president who nominated him has withdrawn the nomination. Or not. Stay tuned.