Some Republicans and Democrats in the Senate say the one thing that could prompt the GOP to give Supreme Court nominee Merrick Garland a hearing and a vote this year is Hillary Clinton’s election to the White House in November.
According to these senators, a Clinton victory could force Republicans to rapidly shift gears and confirm Garland, in an effort to prevent Clinton from choosing a younger, more liberal alternative.
Garland has won praise from Republicans in the past. And at age 63, he could suddenly be seen as an acceptable compromise, especially since Clinton could decide to choose a younger, more liberal judge.
Senate Republican leaders have so far argued that the Americans deserve a voice in who should fill the high court vacancy left by the death of conservative stalwart Antonin Scalia. Therefore, pivoting sharply to rush Garland through the Senate would require throwing that argument out the window for political expediency purposes., a move that may not be politically easy to make.
Most Republicans are dismissing the notion of a lame duck 180-degree about face on Garland.
“We can’t have it both ways,” Sen. Lindsey Graham, R-S.C. said Wednesday. “We cannot say ‘let the people speak,’ and then say ‘no, you can’t.’ If you are going to let the people speak, let ’em speak and honor their choice.”
“The principle is that voters get to choose,” said Sen. John Cornyn, R-Texas, who currently holds the No. 2 GOP leadership post in the Senate. “If we were to circumvent the voters’ choice by considering it in a lame duck, we would be violating that principle so I think it’s important that we stick with it.”
But others disagree, and note they never subscribed to the notion that blocking Obama’s nominee was ever about anything more than preventing the Supreme Court from swinging to the left.
Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, told the Washington Examiner that Republicans shouldn’t be afraid of doing whatever they can to fill the vacancy with the least liberal nominee they can.
“I’ve said in the lame duck I would certainly consider it,” Flake said of the possibility of pushing through Garland. “My concern is the direction of the court, the balance of the court. And if my choice is between Garland in a lame duck and a Hillary Clinton nominee, I’ll take Garland.”
Flake recognizes that such a turn-about would require some verbal gymnastics for GOP leaders to rationalize to the broader public after saying the next president should be able to fill the vacancy.
And Republicans would have to worry about how Democrats could react. Flake acknowledged that Democrats could try to prevent Republicans from changing their minds, and block Garland in order to get a more liberal nominee next year from Clinton.
“It’s difficult to take the position that the next president ought to choose and then switch. I would have no problem doing it. I think we should,” Flake said. “Then we have to consider what the Democrats in the Senate would do — would they try to block Garland? We don’t know. They would take the position if the next president ought to decide, as you have said, shouldn’t the next president who has already been elected decide?”
Sen. Sheldon Whitehouse, D-R.I., who also sits on the Judiciary Committee, said Republicans would be wise to change their tune now and consider Garland as “sensible, moderate bird in the hand.”
“There are a lot of Republicans and a lot of Republican special interests that are behind this effort right now and [they] will have a rethink and reset moment if they’re looking at a Democratic Senate and a Clinton presidency and uncertainty over whom she will appoint,” he said. “Merrick Garland is quite a sensible, moderate bird in the hand … [he is a] very viable Supreme Court nominee.”
With GOP presidential frontrunner Donald Trump leading the delegate hunt headed into the summer campaign stretch, others voices on the right aren’t so sure. Right now, most polls show Clinton besting Trump by eight to 13 points, a gap making many Republicans pessimistic about November.
Ilya Shapiro, editor in chief of the Cato Institute’s Supreme Court Review, said others on the right and left may also be wary about what a Trump presidency would mean for the high court.
“I think if it seems in October that Hillary is going to win — or for that matter if it seems like Trump is going to win and people are uncertain about what that would mean for Supreme Court or other nominations, then you could see a softening of this position,” he said, referring to the current stance of Senate Republicans refusing to hold hearings on Garland. “You could hearings, you could see a vote. It’s very fluid because there aren’t constitutional standards for guiding the Senate process.”
