Why Garland Could Have Better Luck in a Lame Duck

If Democrats take the Senate and win the presidency again, some in the GOP might soften their stance on confirming Obama's Supreme Court pick.

Federal appeals court judge Merrick Garland stands as President Obama and Vice President Joe Biden applaud as he is introduced as Obama’s nominee for the Supreme Court in the Rose Garden of the White House on Wednesday.
AP Photo/Evan Vucci
March 16, 2016, 3:24 p.m.

A small group of GOP senators signaled Wednesday that they might be willing to consider President Obama’s Supreme Court pick during a lame-duck session of Congress.

And several senators said they would at least meet with Merrick Garland, the federal appellate judge that Obama nominated Wednesday.

Their comments signal a small crack in the GOP leadership’s opposition to giving Obama the chance to replace late Justice Antonin Scalia.

The lame-duck scenario that has been batted around among political analysts since a bitter political standoff over the Supreme Court vacancy emerged in mid-February, and plays out like this:

Republicans lose their majority in November and Hillary Clinton wins the White House. That means a moderate nominee from Obama is better for the GOP than a liberal choice that would emerge from a new Democratic president working with more Democrats in the Senate.

“If the election doesn’t go the way Republicans want it, there will be a lot of people open to that, I am sure,” said Sen. Jeff Flake, an Arizona Republican. Is he open to it? “We will wait and see.”

Orrin Hatch, a senior member of the Senate Judiciary Committee, said Wednesday, “I’d probably be open to resolving this in the lame duck.”

In the nearer term, GOP Sens. Kelly Ayotte and Susan Collins joined Flake in saying they would meet with him. So did Sen. Rob Portman, according to press reports. And vulnerable Republican Sen. Mark Kirk said Wednesday that he would consider the nomination.

In naming Garland, whom seven sitting Republican senators voted to confirm to the U.S. Court of Appeals for the D.C. Circuit in 1997, the White House clearly hopes that Republicans will now shift their strategy. In 2010, Hatch said that Garland would win confirmation to the Supreme Court with bipartisan support—“No question” about it.

“Refusing to consider a nominee so preeminently worthy of consideration is like shutting down the government—and you saw how that worked out for them,” said Sen. Richard Blumenthal, a Democratic member of the Judiciary Committee. “So they may continue in this position, but they’ll feel the effects in November.”

To be sure, the main GOP message Wednesday was a reiteration of their refusal to allow Obama to replace the staunchly conservative Scalia.

Many Republicans—led by Majority Leader Mitch McConnell—quickly reaffirmed the principle that voters should have a hand in deciding the next pick, at least indirectly, by waiting until there’s a new president.

“This person will not be confirmed,” said Sen. John Cornyn, the GOP whip. “So there’s no reason going through some motions and pretending like it will happen because it’s not going to happen."

“The next president ought to make that decision. This isn’t about the personality; this is about the situation as we’ve described it. It’s the principle that’s involved here,” said Sen. John Barrasso of Wyoming, another member of the GOP leadership team.

Asked about lame-duck action if Republicans lose the Senate and the White House, Montana Republican Steve Daines replied with a simple “No.” “We have been very clear. We are going to wait until the voice of the American people is heard,” he said in the Capitol.

But some members of the GOP caucus are holding their cards closer to the vest when it comes to what might happen in the lame-duck session. “Let’s just see what happens,” said Lindsey Graham.

Collins, a moderate from Maine, said a lame-duck vote “may well be how it turns out,” but noted that she did not know McConnell’s plans.

“The irony would be if Secretary Clinton wins and this nominee, who is considered a centrist, is not considered and we end up with a nominee who is far more liberal. That certainly would be an ironic outcome,” Collins told reporters in the Capitol.

A spokesman for McConnell noted the senator’s view that the next president will fill the vacancy, and declined to address “hypotheticals” about election results and the lame duck.

Outside groups on both sides, meanwhile, have begun waging a brutal political fight over Garland.

The Senate Majority PAC, an outside group devoted to returning the chamber to Democrats, has already released an ad hitting Ayotte for sticking with Donald Trump and the party line on the Supreme Court. The group announced Wednesday it would extend its TV ad campaign another week and boost its message with new ads online.

But conservatives will receive air cover too; the Judicial Crisis Network said it would launch a $2 million ad campaign before Garland was even officially announced as the pick.

Jason Plautz contributed.

Jason Plautz contributed to this article.
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