How could Republicans vote to confirm President Obama’s nominee when they have been arguing that the next president should make the choice? Here’s how. Senate Majority Leader Mitch McConnell (R-Ky.) is not simply saying that the Senate should ignore major judicial nominations in a presidential election year. He is arguing that this nomination is particularly inappropriate to consider before Americans vote in November. “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction,” McConnell said Wednesday. According to McConnell, the big question is whether the country wants arch-conservative Antonin Scalia to be replaced by a Democratic nominee. Should Clinton win in November, McConnell is leaving himself space to argue that the country has shown it is willing to shift the court. Accordingly, Republicans could take Garland, a moderate, instead of whomever Clinton would nominate.
McConnell also cites Joe Biden, who as a senator in 1992 indicated that Supreme Court nominees should not be considered during the “political season,” in part because they would inevitably be subjected to withering, politically motivated attacks. Once again, McConnell could argue that, after November, the “political season” is over and the Senate could conduct an orderly confirmation process.
Such a shift should not surprise anyone. A lame-duck confirmation would represent an obvious convergence of interests — the president would get a nominee who has always been on his short-list of Supreme Court candidates, and Republicans would get a relative moderate instead of whomever Clinton would choose. It is very likely that the White House and Senate leaders have gamed it out this way, and it is a good bet that Garland himself, who is no political naif, believes that a lame-duck Senate confirmation might be his best chance to be more than a symbolic nominee.
To be clear, McConnell’s argument against considering Garland now and the one the Senate majority leader might make to reverse course after November are unconvincing justifications for raw political calculation. The government’s business should not be blacked out for months leading up to an election. It is also true that it might be hard to rush through a Supreme Court nomination in the final days of a Senate’s session. But not impossible for a motivated Senate majority leader — or, depending on how the election turns out, a motivated soon-to-be Senate minority leader. McConnell is laying the rhetorical groundwork to try.