The Garland Nomination: A Hot Potato


President Obama has nominated Merrick Garland to fill the Supreme Court opening resulting from Antonin Scalia’s recent passing. Garland is currently Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, which is generally counted as the second-most important in the land. He is somewhat of a centrist in his judgments and would not meet the hopes of liberals to push the Court strongly to the left. But no one doubts that he is eminently qualified.

Of course, Republicans under the redoubtable leadership of Senate Majority Leader McConnell have proclaimed that his nomination is dead on arrival. It is, so they say, nothing to do with the highly esteemed Judge Garland; any nomination by a lame-duck President would be so treated. Democrats are somewhat conflicted. They would have preferred a flaming liberal. The disrespectful opposition by Republicans could be a useful goad for their supporters, even though they would hardly expect a successful confirmation. Moreover, they might fear a cagey acceptance of this olive branch by Republicans concerned about far worse from Hillary next year.

All things considered, this is a brilliant ploy by the President. He has put Republicans on the spot. Their opposition is exposed as completely political. Those Republican senators up for re-election in blue or purple states will face new difficulties beyond what running on the under-card of a Trump ticket probably entails. And there actually is a plausible argument for why the nomination might succeed.

Why, and when, might Republicans relent? They certainly won’t want to further aggravate the roiling Trump crowds before his nomination is clinched. They still harbor fond but dwindling hopes of a different candidate. But after the convention, Garland may look like the best of some bad possibilities. The belief remains that Hillary will wipe the floor with Trump. I doubt that, but the odds are that she will indeed defeat him in November. So, wouldn’t it be wise to bend and accept Garland instead of whomever a triumphant Hillary and quite possibly a Democratic-controlled Senate might bring forth? This argument becomes even stronger after November if the expected result is in the books.

But wait, the Democrats might play a hand in this game too. It’s conceivable that Obama could withdraw the nomination during the lame duck session as a concession to his successor. I think that is unlikely. Surely Garland received assurances from the President that the nomination would receive full support before taking on this sitting duck role. However, perhaps Senate Democrats might filibuster their own candidate! They could probably find some contorted explanation for their actions. One delicious idea is  just throwing the Republican arguments that the next President should decide this issue back in their faces.

The bottom line is that this is a hot potato for Senate Republicans. But it is also much the same for Senate Democrats, especially if Hillary wins and brings along a Senate majority on her coattails. Leader-in-waiting Chuck Schumer would have some tricky decisions to make. Judge Garland is far from the first choice of most Democratic senators. He is a 63 year-old white man with decidedly centrist leanings. Most liberals would prefer a younger judge who could make a longer impact on the Court, and also another minority representative would be most favored.