Judge Merrick Garland of the U.S. Court of Appeals for the Washington, D.C., Circuit will most likely not become Justice Merrick Garland of the Supreme Court, at least not while President Obama remains in office. He seems unlikely to get even a hearing before the Senate Judiciary Committee, or a vote either by that panel or the whole Senate.
And it may be partly because it’s hard to imagine an Obama nominee more likely to win confirmation, if the Republicans allowed a vote.
Republican Senate Majority Leader Mitch McConnell repeated on Wednesday what he said just hours after the late justice Antonin Scalia died in mid-February: There will be no Judiciary Committee hearings, and no votes on confirmation while Obama resides at 1600 Pennsylvania Avenue.
“The Senate will appropriately revisit the matter when it considers the qualifications of the person the next president nominates,” McConnell said, apparently extinguishing even the dim prospects of a vote in the lame-duck session after the November elections.
Still, the pitched political battle over Garland’s fate could turn in unexpected ways, and will shape — and be shaped by — the 2016 race: not just Donald Trump’s unprecedented presidential race but the fight to control the Senate, in which a platoon of Senate Republicans are facing stiff challenges.
President Obama introduces federal appeals court judge Merrick Garland, his nominee to fill the Supreme Court vacancy, at the White House on Wednesday, March 16, 2016. (Photo: Pablo Martinez Monsivais/AP)
Garland, 63, is a judicial moderate who earned the support of a majority of Republicans for his 76-23 confirmation to the appeals court. Seven of the Senate’s current 54 Republicans supported him, while five opposed him, including McConnell and Senate Judiciary Committee Chairman Chuck Grassley. Garland is a well regarded former federal prosecutor who walked in the ruins of the 1995 terrorist attack in Oklahoma City while emergency workers were still pulling out bodies, and he supervised the case that led to the death penalty for convicted bomber Timothy McVeigh. Conservatives say he is unsympathetic to their views on gun rights, but no one has seriously suggested he lacks the credentials to sit on the republic’s highest court. In fact, the GOP argument so far is not that he’s unqualified, but that someone who is not Obama should pick the next justice.
Garland’s nomination would need 14 Republicans to disrupt an inevitable filibuster, and five to be confirmed. Even if McConnell had not drawn that early line in the sand, that would not have been easy, but it would not have been impossible, and surely would have carried shorter odds than if Obama had chosen a nominee closer to the base of the Democratic Party. Put differently, there would be comparatively little political danger to the GOP in considering, and rejecting, a liberal firebrand, even one plucked from the ranks of women or minorities.
Republicans know that the main prize in play is the ideological shape of the Supreme Court. The late justice Antonin Scalia wasn’t just “a” conservative jurist. He was arguably the most influential conservative jurist of his era. Republicans know they’re highly unlikely to get another Scalia, but would settle for putting another conservative in the seat that the acerbic Italian-American held for decades, continuing their run of 5-4 rulings on many contentious issues. The problem for Republicans is not that Garland may turn out to be liberal — it’s that he’s sure to be a lot more liberal than Scalia, tipping the overall balance of the court to the left. To avoid that, the GOP has to gamble that they will recapture the White House come November.
For the Republican base, the issue is even more stark: It’s not just a question of how Garland would vote; it’s their refusal to countenance handing Obama any sort of victory. Polls conducted before Garland’s nomination found nearly seven in 10 Republicans saying Obama shouldn’t even try to fill the seat.
Republican National Committee Chairman Reince Priebus captured the two notions — the court’s potential shift, anger at Obama — on Twitter. “We won’t stand by while Obama attempts to install a liberal majority on #SCOTUS to undermine our Constitution & protect his lawless actions,” he said.
White House aides have long said that having an actual nominee will force Republican intransigence to crumble, and that vulnerable Senate Republicans will ultimately press their leaders to hold hearings and votes. They point to conservatives like former Attorney General Alberto Gonzales who have called for the Senate to take up the nomination. McConnell will cave, they predict confidently.
Senate Majority Leader Mitch McConnell, R-Ky., leaves the Senate chamber after vowing that the body will not hold hearings on whether to confirm Garland. (Photo: J. Scott Applewhite/AP Photo)
McConnell will not cave, those close to him counter. Vulnerable Republicans don’t need to hold the line the way he does — they can meet with Garland, something their leader refuses to do — but they need the GOP base in November more than they need Democrats or up-for-grabs independents. If core Republicans stay home, the candidates lose. Swing voters are less likely to be won or lost on whether McConnell lifts the roadblock than on the parties’ standard-bearers, economic conditions or other factors.
One big variable, officials of both parties agree, is the Trump factor. Back in March, an aide to a vulnerable Republican senator told Yahoo News, “I’m not sure we want to be in the business of telling voters that we’d rather risk having Donald Trump nominate the next Supreme Court justice.” The brash marketing whiz has said he supports McConnell’s position. But the big unknown is how Trump the GOP Nominee affects Garland’s fate. Fairly large numbers of Republican primary voters have told pollsters that they will not back the tinsel-haired entrepreneur in the general election. If they stay home, Republican candidates in down-ballot races may need to rely more heavily on independents.
Some Democrats think that this is a fight they can’t lose.
“We have forced them into a telescoping series of untenable positions, where even agreeing to meet with the guy is a cave in the view of their base,” said a senior Democratic congressional aide.
“It’s a win-win situation. Either we get the confirmation and change the balance of the court for a generation, or they have to fight to November defending the most extreme, untenable position of no-votes, and we’ll annihilate them on that,” the aide said. “And then President Clinton nominates” Scalia’s successor.
So, the aide said, “I don’t care if McConnell caves or not.”
(Cover tile photo: Chip Somodevilla/Getty Images)