How Merrick Garland Could Still End Up On the Supreme Court

Appeals Court Judge Merrick Garland speaks in the White House Rose Garden after being nominated by President Barack Obama to the Supreme Court on March 16. (Kevin Lamarque/Reuters)
Appeals Court Judge Merrick Garland speaks in the White House Rose Garden after being nominated by President Barack Obama to the Supreme Court on March 16. (Kevin Lamarque/Reuters)

We’ve said it before, and we’ll say it again: President Obama’s pick for the Supreme Court is very unlikely to get a hearing, much less to be confirmed, by the Republican-controlled Senate this year.

But a few Republican senators have indicated they’d be willing to at least meet with Judge Merrick Garland — and  one, Sen. Mark Kirk (Ill.), has said he thinks Garland should get a vote. (Maine Sen. Susan Collins has called for a hearing.) There’s a possibility, however remote, that more GOP senators could split with their party and endorse Garland’s consideration.

All this has raised questions of whether Republicans are softening on their blockade. To be honest, it doesn’t seem like it. Meeting with a Supreme Court nominee is not the same thing as voting for a Supreme Court nominee. Plus, the most important person in the Senate, Majority Leader Mitch McConnell (R-Ky.), has consistently maintained that the Senate will not consider Obama’s nominee. And if McConnell doesn’t bring Garland’s confirmation up for a vote, it won’t come up for a vote.

But if there’s one thing this election cycle has taught us, it’s never say never. There are foreseen and unforeseen political events that could change Republicans’ calculations. So with the caveat that all of this or none of this could happen, here are four scenarios that could make Senate Republicans switch course and consider Obama’s Supreme Court nominee, ranked in order of most to least likely.

1. Independents in swing states get riled up

Make no mistake: Nearly every calculation made by both sides during this confirmation battle is rooted in electoral politics. That’s because the stakes are high. In November, the White House, the Senate and possibly the ideological swing of the Supreme Court is up for grabs.

Senate Democrats think Republicans’ “obstruction” of Garland is a winning campaign issue, especially when they can tie it to Donald Trump. They plan to hammer vulnerable Republican incumbents, like Sens. Pat Toomey (Pa.), Kelly Ayotte (N.H.), Rob Portman (Ohio) and Ron Johnson (Wis.), in their home states with this message: Your senator isn’t doing his or her job. They’re doing Trump’s bidding instead.

It’s a safe bet that operation won’t change the minds of many partisan voters. The open question is what independents will do. Democrats are betting the Supreme Court drama will sway these voters toward Democrats. Republicans are betting it won’t.

If Republicans are wrong and they sense a groundswell of opposition to their plan, Senate leaders could conceivably switch course and allow hearings — possibly even a vote. Keeping control of the Senate, after all, is their top priority.

“These are tough optics, I will admit,” Sen. Jeff Flake (R-Ariz.) told CBS.

For what it’s worth, a recent Washington Post poll (taken before Obama nominated Garland) showed that independents think, by a margin of 2-to-1, that the Senate should hold hearings.

2. Republican senators meet with Garland and like him

Following Obama’s nomination of Garland, at least six GOP senators have indicated or even said outright they’d be willing to meet with the judge, despite the fact McConnell has said he wouldn’t.

Optimistic Democrats might read that as a sign that Republicans are starting to see the light — that Obama picked the most qualified person for the job, and if Republicans sit down with him, they’ll agree — and maybe even convince their colleagues to hear him out.

This, too, is plausible. Garland has received praise in the past from Republicans, and seven sitting GOP senators voted to confirm him to the D.C. Circuit Court in 1997.

But those same Republicans who said they’ll sit down with Garland have also indicated their meeting is not an indication they’re changing their mind about him. In fact, some have said they will meet with him just to tell Garland they won’t consider him.

“If I can meet with a dictator in Uganda,” said Sen. Chuck Grassley (R-Iowa), the chair of the Senate committee that would hold hearings on Garland, “I can surely meet with a decent person in America.”

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SOURCE: Amber Phillips 
The Washington Post