But there is a scenario worth entertaining here in which Obama has the last laugh — and the GOP posture ends up leaving Republicans with only downsides, and zero upsides.
That scenario goes like this: If Republicans don’t give Garland any hearing, and a Democrat (most likely Hillary Clinton) wins the presidential election, Republicans could then move to consider him in the lame duck session, to prevent Clinton from picking a more liberal nominee. But at that point, Obama could withdraw his nominee, to allow his successor to pick the next justice, instead.
The Republican argument for refusing to consider Garland (or anyone Obama nominates) is that the selection of the next justice is so hugely consequential that only the next president should make that choice, so that the American people have a say in it, by choosing who that president will be. Lurking behind this rationale is the understandable fear that if the court is tilted in a more liberal direction, it could deal a serious blow to a number of conservative causes — so better to roll the dice by holding out and hoping a Republican is elected president.
But with Donald Trump tightening his grip on the nomination, and the more electable “establishment” GOP candidates falling like dominoes, the prospect of Clinton winning the presidency is looking very real, and may continue to look even more likely as the campaign progresses. Republicans themselves fear that a Trump nomination could cost them the Senate, too. If all of that happens, Republicans might see no choice but to try to confirm Garland in the lame duck, before Clinton takes office and picks a nominee, possibly with a Dem-controlled Senate behind her. Some Republicans are already floating this idea.
But Obama could decline to play along with that scenario.
“Waiting until a lame duck session to decide whether to act is a high risk strategy, as Obama could always withdraw the nomination, giving a President Clinton the opportunity to swing for the fences,” Jonathan Adler, a libertarian-leaning law professor at Case Western Reserve University, tells me. Adler adds that Obama could simply justify this by arguing “that voters elected Hillary, that he gave Republicans a compromise offer, and they rejected it.”
The amusing thing about this outcome is that, in justifying the decision to allow Clinton to pick a more liberal nominee than he did, Obama would be offering a version of the rationale Republicans offered for not considering his pick at all: the voters have rendered a verdict on what Scalia’s replacement should look like, by picking the next president, and now we should honor that. And in this scenario, Republicans might end up with only downsides: they might end up sustaining a lot of political damage by refusing to act on Obama’s nominee at all, and they’d end up squandering the chance to get a more centrist Justice, rather than a more liberal one. (They would have kept the base happy, of course, but at what price?)
Obviously Republicans might still stick to their current strategy, because — again — it’s worth taking a big gamble in hopes of electing a Republican president to keep the Court tilted in a conservative direction. And who knows — maybe they’ll prove right, and the GOP will take the White House. But if it’s looking more likely that Clinton is going to win, and if more chatter about the above endgame arises, Republicans might feel more inclined to confirm Obama’s nominee before the election. As Adler puts it: “It would become a game of chicken.”
UPDATE: It occurs to me that I probably should have argued that in this scenario, Democrats and liberals would be getting the last laugh, as opposed to Obama getting it. After all, Obama by all indications does want Garland confirmed; he’d merely be deferring to Hillary after the election. And liberal Dems (some of whom are already disappointed by the Garland pick) would be getting their preferred outcome. I’m not predicting this will happen, just floating it as an interesting possibility. You may also see some liberal pressure on Obama to do this, if Democrats secure a big victory in November (though whether Obama would bow to it is anybody’s guess), which would also be an interesting scenario to see play out.
At any rate, maybe the headline should have been: “How Dems could get last laugh in Supreme Court fight.”
* REPUBLICANS GROPE FOR FAKE MIDDLE GROUND IN COURT FIGHT: The New York Times reports that a handful of Senate Republicans are feeling their way towards a middle ground, saying they’ll agree to consider Garland in the lame duck session, but not before:
“For those of us who are concerned about the direction of the court and wanting at least a more centrist figure between him and somebody that President Clinton might nominate, I think the choice is clear — in a lame duck,” said Senator Jeff Flake, an Arizona Republican who sits on the Judiciary Committee….He was not alone. Senator Orrin G. Hatch, the senior Utah Republican who also sits on the panel, said he would be open to taking up the nomination after the election, as did a handful of others.
Of course, if the logic here is that only the next president should nominate the next Supreme Court Justice, supposedly so the people can decide, this doesn’t really scan with that. And there’s the above scenario to worry about, too.
* WHAT WORRIES LIBERALS ABOUT COURT FIGHT: As noted, Republicans could try to push Garland through in the lame duck. James Hohmann explains why this worries liberals:
What worries the smartest people on the left is that McConnell will shepherd Garland’s confirmation through during the lame-duck session if Clinton wins, depriving the first woman president of her ability to pick a more progressive alternative. While Garland is 63, which means he has a relatively shorter shelf life on the bench, Hillary could pick someone who is still in her 40s.
Of course, Obama could withdraw that nominee, as explained above. But it’s possible he might not, of course. It’ll be interesting to see if liberals would pressure him to do so in this scenario.
* HOW OBAMA BROKE WITH THE LEFT: Politico reports that liberals are unhappy with Obama’s centrist pick, and explains the White House’s rationale this way:
People close to the White House’s discussions saw Obama making the political calculation that Garland was the one potential nominee with so many professional and personal qualifications — and so few potential knocks against him — that any opposition to him will be clearly seen as pure obstructionist Republican politics. He may not have what people believed to have been Obama’s perfect choice. But he’s who the president and his aides have determined is their best shot.
Of course, trying to appear “reasonable” doesn’t have a history of working against GOP intransigence. So this is another reason we may see liberals pressure Obama to withdraw the nominee if this fails and Republicans move to confirm him in the lame duck.
* DEMS RATCHET UP PRESSURE OVER COURT PICK: Senate Democrats today will escort Obama Supreme Court nominee Merrick Garland to Capitol Hill, to increase pressure on Republicans to consider him. Mitch McConnell won’t meet with him, though:
McConnell…spoke by phone Wednesday with Garland and told him the Senate won’t act on his nomination. McConnell opted for the phone conversation, “rather than put Judge Garland through more unnecessary political routines orchestrated by the White House,” McConnell spokesman Don Stewart said.
Since there’s obviously no point in meeting with Garland — Republicans will not consider him no matter what he says — they will graciously spare him the trouble, for his sake.
* WHY REPUBLICANS MAY HOLD FIRM: Paul Kane explains it:
The presidential environment, with front-runner Donald Trump dominating the process, has left many social conservatives fearful that their standard-bearer won’t share their values. Republicans think that the Scalia vacancy will at least encourage the religious voters to show up in November — even if it’s just to save the Senate GOP majority as a check against the possibility that Democratic front-runner Hillary Clinton wins and gets the opportunity to appoint more liberals to the Supreme Court.
As my lead item suggests, however, that’s a pretty high risk strategy!
* TRUMP CAMPAIGN PREPARES FOR TOUGH CONVENTION FIGHT: The Post has a deep dive into the arcane party rules and delegate selection processes that could determine whether Trump is stopped at a contested convention. Note this:
The Trump campaign is putting a team in place to track the delegates who have already been designated on state ballots, said senior adviser Ed Brookover, and it will coordinate with its state staffs to monitor delegate selection. Brookover, who is managing the process for the Trump campaign, says that skepticism of its ability to compete in this sort of process is “wishful thinking on the part of Mr. Trump’s opponents.”
We may get to see whether Trump’s vaunted deal-making skills are made of…
* AND A VULNERABLE REPUBLICAN RUNS FROM REPORTERS: CNN reports that a handful of Senators — moderates and those facing tough reelection fights — are leaning towards at least considering Obama’s nominee. This is illustrative:
Pennsylvania’s [Pat] Toomey, one of the vulnerable Republicans facing a tough re-election in a swing state, dashed from reporters in the Capitol Wednesday, refusing to take questions about Garland and whether he would meet with him. However, in a press release issued by his office, the first-term senator said a confirmation should wait until after the election “to give the American people a more direct voice” in picking a justice.
Because “will you meet with the President’s nominee to fill a Supreme Court vacancy?” is such a tough question….