Merrick Garland’s Best Shot at Confirmation: Lame Duck

Senate Republicans responded promptly to President’s Obama’s nomination of Merrick Garland to the Supreme Court Wednesday with nary a mention of Garland’s name or qualifications.

Their aim was to frame Obama’s nomination as nothing more than politics, so that they could defend their decision not to give him a hearing over the coming months. “The decision announced weeks ago is about a principle not a person,” Senate Majority Leader Mitch McConnell said on the Senate floor. “It is clear that the president named this person not with the intent to confirm them but to make it an issue in the campaign.”

Arizona Republican John McCain, a Judiciary Committee member who was one of the 32 Republican senators to vote for Garland when he was confirmed by the Senate in 1997 76-23, echoed the sentiment. “This issue is not about any single nominee – it’s about the integrity of the Court,” McCain said in a statement. “With less than a year left in a lame-duck presidency and the long-term ideological balance of the Supreme Court at stake, I believe the American people must have a voice in the direction of the Supreme Court by electing a new president.”

Senator John Cornyn, the #2 Senate Republican and Judiciary Committee member, added his voice to the chorus. “At this critical juncture in our nation’s history, Texans and the American people deserve to have a say in the selection of the next lifetime appointment to the Supreme Court,” he announced.

The bet here is that Republicans can win back the White House—and hold on to the Senate—allowing them to replace Garland with a more conservative nominee. Though Garland clerked for liberal lion Supreme Court Justice William Brennan, his record is that of a moderate and he is particularly known for his time in President Bill Clinton’s Justice Department, where he prosecuted the Oklahoma City bombers, the Unabomber and the Atlanta Olympics bombers.

There is no certainty they the plan will work. The Republican primaries are in disarray and the Party’s frontrunner, Donald Trump, viewed with suspicion or outright hostility by the GOP establishment. McConnell has seven seats to defend that were won by Obama in either 2008 or 2012. Five of those are already toss ups—and the loss of five would hand Democrats the majority in the Senate.

There is an outside chance that McConnell could be forced to change his mind if enough of his vulnerable members call on him to do so. McConnell and his members will have to withstand a White House campaign to impose public pressure on a prompt vetting and vote on Garland. Already New Hampshire’s Kelly Ayotte and Illinois’s Mark Kirk, two of McConnell’s most vulnerable members, have said they would be open to meeting with Garland. And Maine’s Susan Collins and outgoing Indiana Sen. Dan Coats, who was two of seven sitting Republican senators who voted for Garland back in 1997, have both said they’d like to seeing confirmation hearings, if not a vote.

But a recent NBC/Wall Street Journal poll found that 48% of Americans would like to see the Senate act on Obama’s nominee and 37% wanted to wait after the election. That is hardly an enormous public outcry that might force McConnell’s hand. That’s why the most likely route for Garland to take a place on the court is the Senate’s lame duck session after the November elections, if Democrats win the White House, the Senate or both.

Part of the problem in the Senate is personal: Republicans are still smarting that Senate Minority Leader Harry Reid in 2013, when he was then majority leader, changed the Senate rules to make it harder for the minority to filibuster certain judicial nominees. “Why would we trust them after they invoked the nuclear option and blew up the Senate in order to allow President Obama to stack the courts,” Senator Lindsey Graham said on Monday.

With things so acrimonious on the Hill—Republican intransigence threatens to bring Senate proceedings to a standstill—little is likely to happen before the election. But, once the election is over, all bets are off.

In the scenario where Hillary Clinton wins the White House or Republicans lose the Senate, Senate sources on both sides of the aisle say there will be a strong impetus to confirm Garland in a lame duck session. After all, Garland would probably be more moderate than whomever Clinton might nominate.

And he’s one of the oldest nominees in recent history. Not since Richard Nixon nominated Lewis Powell in the early 1970’s has someone at that age—Powell was 64, Garland is 63—been nominated. His time on the bench will be considered more limited than if the nominee had been 49-year-old federal judge Sri Srinivasan, who was also on Obama’s shortlist.