Of the 54 Senate Republicans, only 2—Mark Kirk of Illinois and Susan Collins of Maine—support holding hearings this election year on President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court. Kirk, but not Collins, also says he would consider voting for the nominee, making him the lone Republican senator in that column. Importantly, the 11 Republicans on the Senate Judiciary Committee, which holds nomination hearings, have stated in a jointly signed letter their opposition to convening them.
Obama aides have tried to schedule one-on-one meetings for Garland with as many Republican senators as possible. The theory here has been, more or less, that to know the judge is to like him and to agree that the Senate should hear the nomination without delay.
Through April, Garland had met with 14 Republican senators, including Kirk and Collins. The pair are still the only GOP senators who favor hearings. Indeed, the remaining 52—including those who met with Garland but are not named Kirk or Collins—oppose either hearings during the balance of this election season or the nomination on its merits. Or both.
Consider the views of the Republican senators who met with Garland (again, excluding Kirk and Collins). They made public statements after their meetings. Oklahoma senators Jim Inhofe and James Lankford said that “a presidential election year is not the right time to start a nomination process for the Supreme Court.” New Hampshire senator Kelly Ayotte said that, “given we are in the midst of a vigorous presidential election, I believe the people should have a voice on this important nomination” and that “the confirmation process should wait until the people have spoken in November.” And Arizona senator Jeff Flake said, “Because this nomination has the potential to so dramatically shift the balance of the court, I continue to believe that the Senate is fully justified in waiting until the presidential election before proceeding to fill the seat.”
Ohio senator Rob Portman said that instead of “having a nomination fight in this partisan election-year environment, I believe awaiting the result of the election will give the nominee more legitimacy and better preserve the Court’s credibility as an institution.” By “nominee,” Portman did not mean Garland but “the nominee of our new president,” as he put it, whether a Republican or a Democrat. South Dakota senator Mike Rounds took that same position, as did South Carolina senator Lindsey Graham and Arkansas senator John Boozman.
Iowa senator Chuck Grassley, chairman of the Judiciary Committee, said he was not convinced that Garland “would be willing to play the role of a sufficiently aggressive check on an administration.” And Pennsylvania senator Pat Toomey said that the two men “talked about concerns I have about his record and his judicial philosophy,” but that, “unfortunately, for me, throughout the process of this discussion, he did not assuage my concerns,” in particular whether he would play the checking role Grassley described.
Alaska senator Lisa Murkowski said, in the words of the New York Times, that she talked with the judge “about state issues like access to public lands and gun rights” and “found his knowledge of Alaska wanting.” And North Dakota senator John Hoeven said he wouldn’t support Garland because, as the Times put it, “he had not alleviated his discomfort about his perspective on gun rights and federal regulations that would affect those working in farming, ranching and energy sectors.”
Garland was nominated on March 16, but it was soon after Justice Antonin Scalia’s death on February 13, creating the vacancy on the Court, that Senate majority leader Mitch McCon-nell announced there would be no hearings this year, regardless of the person Obama might nominate. Says Don Stewart, McConnell’s spokesman: “The White House said that once there was a nominee, we’d break. Then they said we’d hear from constituents over the Easter recess and we’d break; then they said after Republicans met with Judge Garland, we’d break. But none of that happened.”
Despite the evident failure of the meetings, Obama’s aides haven’t abandoned the effort to arrange more.
Meanwhile, reports Politico, Obama allies, coordinating with the White House, are testing this month a new operations and advertising effort in nine states in which Republican incumbents they think are vulnerable are running for reelection: New Hampshire, Wisconsin, Pennsylvania, Ohio, Illinois, Iowa, Arizona, North Carolina, and Missouri. The message Obama allies want to send is that the Republicans are “shirk[ing] their constitutional responsibilities” by not taking up the Garland nomination.
According to Politico, the effort represents “an unspoken acknowledgment that the Supreme Court fight is less about actually trying to get Garland on the bench before November, and more about turning the Republican resistance into a campaign issue to maximize GOP losses in the Senate, and even in the House.” The Democrats need to take four Republican seats to control the Senate if a Democrat is elected president and five seats if a Republican is.
As for the conservative groups opposing the Garland nomination, they continue to defend the Senate’s position against holding hearings this election year. And the Judicial Crisis Network recently made a combined television and digital ad buy opposing Garland on grounds of his judicial approach, which the ads say, quoting the New York Times, would make the Court “the most liberal in decades.” The ads are running in mainly red states with Democratic senators, such as West Virginia, whose Joe Manchin, while he favors hearings for Garland, is not sold on the merits of the nomination. Also yet to be persuaded are Michael Bennett of Colorado and Heidi Heitkamp of North Dakota, both of whose electorates will see the JCN ads. JCN’s chief counsel Carrie Severino says that the organization is now focusing more on the substance of Garland’s views—on the Second Amendment, the administrative state, and executive authority.
So, then, the battle lines over filling the Scalia seat are being drawn. The last thing Senate Republicans should want to do now is repudiate their position against hearings and instead take up the nomination and confirm Garland. That suggestion came last week from a writer at Red State, who thinks it would be better to put Garland on the Court than risk getting a more liberal justice from Hillary Clinton, who will be our next president, the writer declares, because Donald Trump has “absolutely no chance” of winning. Acting on that advice would aggravate the party’s conservative base and surely cost the Republicans the Senate.
Terry Eastland is an executive editor at The Weekly Standard.
