Five months after winning nomination to the Supreme Court and becoming the object of a pitched partisan battle, Merrick Garland now finds himself in a surprising position: irrelevance.
The name of the mild-mannered appeals court judge, nominated by President Obama in March to succeed the late Antonin Scalia, has been almost entirely absent from the campaign trail — a silent acknowledgment that Garland’s nomination will remain in limbo until at least November and maybe longer.
The Supreme Court is playing a major role in the 2016 campaign, but it is not the part Democrats anticipated after the Republican Senate quickly united to block any action on Garland. The battle today is about the court, not the man.
Republican presidential nominee Donald Trump has seized on the high-court vacancy as the best and perhaps only case he can make to conservatives who are wary about his candidacy. He drew controversy earlier this month when he suggested that “Second Amendment people” might somehow rebel against Democratic nominee Hillary Clinton’s judicial picks if she wins the White House. GOP Senate candidates have also embraced a strategy of making the Nov. 8 election a referendum on the court’s precarious ideological balance.
For her part, Clinton has emphasized the high stakes for the high court, and while she has called on the Senate to confirm Garland, she has not indicated whether she would stick with him if there was still an opening come January 2017.
If she wins, Clinton will face pressure from her party’s left wing to select someone younger or more liberal than Garland. Standing by Obama’s man could alienate liberal Democrats, including those who backed Sen. Bernie Sanders in the presidential primaries.
Garland “was the most conservative possible Democratic nominee, and it makes no sense for that to be who Democrats offer the nation after winning a fresh mandate,” said Adam Green, co-founder of the Progressive Change Campaign Committee, which stayed neutral in the primary. The energy of the liberal grassroots “plummeted,” he said, after Obama nominated Garland.
What a President-Elect Clinton would do with Garland is a question that is becoming less speculative by the day — she has a gaping lead over Trump in key state and national polls. And just because she is not specifically rallying around Garland’s candidacy on the campaign trail does not mean she will abandon him if she wins, many Democrats in Washington believe.
Clinton’s campaign pointed to a statement its chief spokesman issued in March, shortly after Garland was nominated: “Hillary Clinton believes he is a brilliant jurist and the Republicans have no credible reason not to confirm him,” said Brian Fallon.
There is some emerging evidence that Clinton would stand firm on Garland should she win.
Senate Minority Leader Harry M. Reid (D-Nev.) told reporters last week that Clinton “can do whatever she wanted” but that he was “convinced” that she would embrace Garland.
“I would think that she and all the people around her would say, ‘Why do we need to rock the boat here? Let’s get him confirmed quickly and move on to the next one, whenever that comes,'” he said.
Reid’s comment is in line with the thinking of numerous Democratic observers, both on Capitol Hill and off, who say it would be difficult for Clinton to justify spending down her political capital and occupying her staff on vetting and shepherding a new nominee through the Senate during her transition or early presidency.
Dan Pfeiffer, who served as communications director to President Obama’s 2008 campaign and transition before assuming that role at the White House, said it would be “much preferable” for a President-Elect Clinton if this happened on [President Obama’s] dime, not hers.”
“The vetting and selection of a nominee is incredibly difficult with zero margin of error,” he said. “It seems impossible to imagine that a brand new administration that is trying to fill an entire government full of Senate-confirmed officials could or would want to go down this path, while half the White House staff is learning how the phones work and where the bathrooms are.”
Several Garland supporters could carry significant influence with Clinton and her inner circle. They include Jamie Gorelick, who attended Harvard with Garland and supervised him as deputy attorney general under Bill Clinton; Karen Dunn, a former senior Senate aide to Clinton who clerked for Garland and has helped organize fellow clerks in support of his nomination; and, most crucially, Sen. Charles E. Schumer (D-N.Y.).
Schumer has “always said it’s up to Hillary,” an aide said last week. Privately, according to multiple Democrats, he has taken the view that Garland should be confirmed as soon as possible.
Schumer, who built a close relationship with Clinton during their eight years together representing New York, is expected to become the next Senate Democratic leader in January. If Democrats regain the Senate majority, he would have wide latitude to set the party’s legislative agenda — one that would be better served by passage of a jobs bill or immigration reform package than a white-knuckle confirmation battle.
And there appears to be little stomach for that among Senate Democrats, especially after Garland spent much of the spring meeting individually with senators after meticulously preparing for each sit-down with his White House handlers.
“There’s a strong sense this guy deserves it,” a Senate Democratic aide said. “Everyone is impressed with him. He’s not their dream jurist, but he’s been through so much that people feel he’s earned it.”
Clinton and Garland do not have a significant personal relationship, but they do share overlapping networks of friends and confidants. They also share similar backgrounds: Both grew up in middle-class households in suburban Chicago, five miles and five years apart, and went on to top East Coast colleges and law schools.
A major concern for Clinton, said Michele Jawando, a former counsel to Sen. Kirsten Gillibrand (D-N.Y.) who worked on judicial nominations who is now a vice president at the Center for American Progress, is likely to be the idea of upholding principle and refusing to allow Republicans to block Garland’s nomination — even if that means forfeiting the opportunity to make her own choice.
Clinton is also likely to realize that this is not likely to be her only opportunity to shape the court, Jawando said — among current justices, Ruth Bader Ginsberg is 83, Anthony Kennedy is 80, and Stephen Breyer is 78.
“I do know we are going to see further changes on the Supreme Court in the next three to four years,” she said. “She understands that, and so I think her presence looms large no matter what.”
Should she be elected, Clinton’s Supreme Court options may be limited by forces beyond her control: whether Democrats retake the Senate in November and whether Republicans take up Garland’s nomination in a lame-duck congressional session.
Senate Republicans’ resolve to block Garland is unlikely to break before the election, even as they become ever more queasy about Trump. Senate Majority Leader Mitch McConnell (R-Ky.) bragged about his opposition to Garland at a political gathering in his home state earlier this month.
“One of my proudest moments was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy,'” he said to cheers at the annual Fancy Farm Picnic.
But other GOP senators — including Jeff Flake (Ariz.) and Jerry Moran (Kan.) — have acknowledged the possibility of confirming Garland in the lame-duck congressional session following a Clinton victory in November in order to stave off a nominee that would be more distasteful to conservatives.
For Clinton, a lame-duck confirmation of Garland could help ease political headaches by stemming a left-wing backlash if she were to renominate him. It would also clear the way for Senate action on her legislative agenda. Republicans, however, might not be inclined to do a Democratic president-elect any favors by taking the Supreme Court vacancy off her to-do list before her presidency even begins.
Republicans still hope that it will be Trump, not Clinton, who fills the seat that belonged to Scalia.
“It would be very, very hard to imagine that Trump, even on an off day, would appoint anyone to the Supreme Court who would begin to rival the constitutional damage we’d see from Hillary Clinton,” said Carrie Severino, executive director of the conservative Judicial Crisis Network, which has rallied opposition to Garland’s nomination. “There are a lot of people where this may be the sole thread that’s holding them into supporting Donald Trump.”
Trump has not been shy about leveraging the issue: “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges,” he said at a July 28 rally. “Sorry, sorry, sorry — you have no choice.” But Trump has rarely mentioned Garland by name since reacting to his nomination in March.
No major speaker at either the Republican or Democratic national conventions uttered Garland’s name, either, according to a review of transcripts. For Democrats, that is due in part to a careful White House effort to position Garland as a nominee who is both above the political fray and uniquely well-qualified for the Supreme Court.
That effort has also boxed Clinton in to some degree. Were she to abandon Garland, another nominee would inevitably be compared to him and, with his two decades of experience on the nation’s most prominent appeals court, could be found wanting in terms of credentials.
Many Republicans also doubt Clinton would turn away from Garland, wasting months of Democratic engagement on his behalf. “After singing his praises for the last year, I think it would be hard for her to back down and say, ‘on second thought’ and push him out for a younger model,” Severino said.
Severino, however, declined to speculate on how congressional Republicans should react to a Clinton win in a lame-duck session or beyond. Much would depend, she said, on unknown factors — not only the outcome of the elections, but also internal politics of both parties and the cases the Supreme Court accepts for the coming term.
Senate Republican aides who spoke on the condition of anonymity to speak frankly about the possibility of a Clinton win, said much would depend on Nov. 8 and its aftermath — the margin of Clinton’s victory, the state of the Senate and the mood of GOP senators.
McConnell spokesman Don Stewart said the majority leader has been “crystal clear” that “the next President will make the nomination for his vacancy.”
As for Garland, his recent attention has been fixed not on politics, but on family, close friends say, after the recent deaths of his father-in-law and his mother, Shirley, at age 91.
One of his few public appearances this summer was at a memorial service for Abner Mikva, the former congressman and judge who served as a professional mentor. There, according to the Chicago Tribune, he paid tribute to Mikva and teared up as he recalled how Mikva comforted his mother when his father died in 2000.
“She never forgot that kindness,” he said, barely a week after her funeral. “And nor did I.”
Garland is not hearing cases but he continues to manage his administrative work of the D.C. Circuit as its chief judge — reporting to his chambers at the federal courthouse in downtown Washington. He also meets regularly with the White House officials to prepare for confirmation hearings should they come to pass.
“He’s going to be well-prepared when the confirmation comes,” said Barry Rosen, a longtime friend of Garland’s who spoke with him recently.
Another friend, who requested anonymity to speak frankly about his thinking, noted that Garland is well-equipped to deal with his state of political limbo: He waited 18 months for a floor vote after Bill Clinton nominated him to the D.C. Circuit in 1995.
“He knew what he was getting into, and he has the patience to deal with it,” the friend said.