Crafty of O to wait until the morning after Trump’s backbreaking wins last night to stick McConnell with this. Now Senate Republicans will face maximum pressure from both sides.
If they cave and decide to give Garland a hearing after all, Republican voters who are still cool to Trump might decide to vote for him in a burst of “burn it all down” rage. A betrayal here hands Trump the nomination — assuming there’s any doubt that he’s already on track to win it. If, on the other hand, McConnell stands firm, he’s blowing an opportunity to confirm a nominee who’s likely to be more “moderate” than what President Hillary will offer next year. The conventional wisdom on Trump right now is that he’s a dead duck in the general election barring some sort of national crisis. I don’t agree with it, but it’s not out of left field: His favorable rating, for instance, is toxic and it’s an open question whether he could organize a national campaign capable of matching Hillary’s. If McConnell agrees with that CW, that Hillary’s a prohibitive favorite to win and that the backlash to Trump will hand Democrats the Senate, then refusing to confirm Garland now clears the path for Democrats to nominate and confirm a young hyper-liberal justice next year. Garland is already in his 60s and is no far-lefty; if Hillary wins big, liberals will insist that she exploit her mandate by engineering a new Warren Court. (Garland, ironically, clerked for the most liberal member of the Warren Court but he hasn’t followed the same trajectory as a judge.) So what do you do if you’re Mitch the Knife? Accept a quarter-loaf here by confirming a guy whose centrist credentials will be used to show just how unreasonable and obstructionist the GOP is in blocking him? Or risk having no loaf at all when Democrats win this fall and ram through whoever they want?
Another possibility: What if Trump wins the presidency but Democrats reclaim the Senate? Normally that would seem like an improbable outcome, but Trump could theoretically get enough Democrats and independents to cross over for him that he ends up beating Hillary even as those same Dems and indies hand a Senate majority to Chuck Schumer. In that case, even if Trump’s inclined to nominate a solid conservative, the nominee’s apt to get Borked. Trump may have no choice but to float a center-right justice, someone not wildly more conservative than Garland himself. And this assumes Trump’s true to his word that he’d aim for right-wing nominees for the Court. It may be that he wins the election and governs essentially as an independent, a la Mike Bloomberg in New York. How much better would his nominee be than Garland in that case, especially with Schumer exercising veto power?
This is why, contra my esteemed colleague, I think Garland will be confirmed. The question is when. At a minimum, McConnell won’t move on it until Trump’s nomination is assured; like I said up top, there’s too much risk of a voter backlash in the primaries to do it before then. He could move on it this summer, after Trump has clinched. Republican voters would still be outraged, but at that point the GOP establishment will quietly be working hand in glove with Trump to get him elected. If angry GOPers decide to “punish” McConnell by going to the polls for Trump in November, so much the better for the party. (It may even convince some #NeverTrumpers to give Trump, the supposed scourge of Washington Republicans, a second look.) The big wrinkle, obviously, is that angry Republican voters will also punish any GOP senator who’s up for reelection if they support McConnell’s plan to confirm Garland. But that’s no huge obstacle to confirmation: With 46 Democrats prepared to vote yes, McConnell would need just 14 Republicans to break a filibuster. Between blue-staters like Mark Kirk and stalwart centrists like Lindsey Graham, he should be able to find the votes. And if the whole thing proves simply too hot to handle before the election, there’s always the option of confirming Garland during the lame-duck session — although that could lead to some interesting strategizing too. Ahem:
Imagine December: a lame-duck GOP Sen rushing to confirm Garland & Dems filibustering so Clinton can choose someone younger, more liberal.
— Matthew Miller (@matthewamiller) March 16, 2016
Another version of that scenario circulating on social media this morning is that Obama will yank Garland’s nomination this fall if Hillary wins, precisely in order to deny Republicans the chance to confirm him. I don’t buy it. Unless Garland is a very, very loyal party soldier who agreed to be little more than a political pawn for Democrats in this battle, he expects to be given every opportunity at confirmation. The lame-duck session would be his best opportunity. I assume he’s sought Obama’s assurance that his nomination won’t be withdrawn for any petty political reason; that’s the least O can do for him in return for Garland accepting a nomination that’s more likely to end in failure than most would-be SCOTUS appointments. Democrats could filibuster him, although that’d be a bizarre ending to the coming seven months of “CONFIRM GARLAND NOW” propaganda from the White House and its congressional allies. (McConnell would need only six Democratic votes to break a filibuster, assuming all 54 Republicans vote to confirm.) Frankly, I’m not convinced that President Hillary wouldn’t feel obliged to re-nominate Garland if the GOP really did succeed in bottling him up all the way to January. Even as a center-lefty, he’d tilt the Court to a solid liberal majority and there are enough aging justices that she’d likely have a second opportunity soon to go full metal liberal with a nomination.
Bottom line: This guy’s going to replace Scalia, sooner or later.