Plea to the Senate GOP: Confirm Garland Before It’s Too Late

The 2016 election campaigns continue along their disastrous trajectory for Republicans. Trump is almost sure to lose the presidential contest to Clinton, the only real uncertainty being the margin of his defeat and its impact on down-ballot congressional elections. It is highly likely that Republicans will lose their Senate majority as things stand now. (It is even possible they could lose the House as well if the presidential election turns into a full-blown rout.) There remains, however, one critical action Senate Republicans can take to at least mitigate the damage before losing their majority: Confirm Merrick Garland’s nomination to the Supreme Court.

Republicans, and all those who favor judging on the basis of legal principles rather than policy preferences, are right to be extremely concerned about the ideological balance of the Supreme Court. The four Democratic appointees now on the Court have proven to be a virtually automatic voting block supporting the liberal outcome in politically-charged cases. Garland might turn out to be the fifth and decisive automatic liberal vote, but that is by no means a foregone conclusion. (Notably, leftist interest groups are far from enthusiastic about him.) On the other hand, it is a sure thing that liberals will get their fifth automatic vote if the vacancy remains for Clinton to fill. Indeed, she has announced “a bunch of [liberal] litmus tests” for her Supreme Court nominees.

While their underlying concern is valid, the Republican strategy to stall on Garland in the hope that Trump will win the presidency and nominate the second coming of Antonin Scalia seems increasing delusional as the GOP continues its suicide march toward November. When will the Republicans come to their senses and realize what a potential gift President Obama has given them with the Garland nomination? He is undoubtedly the best option (or least undesirable option) available at this point.

Some speculate that Clinton will stick with Garland once she is elected, but this is far from certain. Appointing Supreme Court justices is one of the most consequential actions a president takes and a key aspect of the president’s legacy. It is questionable for this reason alone that Clinton would simply defer to her predecessor’s choice. Moreover, Clinton is sure to face intense pressure from leftist interest groups to nominate an individual more reliably liberal and younger than Garland—and, quite possibly, someone less white.

Several other factors militate in favor of Clinton coming up with her own nominee—and one who pushes the envelope in a strong liberal direction. The Senate Republicans’ stated rationale for refusing to consider Garland—that the nomination must be left to the new president after the voters have spoken—pretty much boxes them into supporting whomever Clinton nominates. Even if Republicans resist, Democrats once in control of the Senate could invoke the so-called “nuclear option” and confirm her nominee by simple majority vote—particularly since Republican resistance would be viewed (correctly) as blatant hypocrisy given their stance on Garland. Furthermore, Senate Democrats and their liberal allies surely are aware of the math challenge facing them in the 2018 mid-term election cycle, which is even more pronounced than the numerical advantage that benefits them this year. In 2018, Senate Democrats will be defending 25 seats versus a mere 8 at risk for Republicans. Since the Democrats probably are looking at only a two-year window of Senate control, they will undoubtedly use that limited time to advance their agenda as aggressively as possible. Shaping the ideological makeup of the Supreme Court for years or decades to come would certainly be a very high priority.

If Republicans do finally wake up to the need to confirm Garland, they must act quickly. The opportunity to do so may not last until a lame-duck session following the November elections. It would not be at all surprising to see President Obama withdraw Garland’s nomination (at the latter’s “request”) immediately after the election as a “courtesy” to President-elect Clinton.