Should McConnell and the Republican Senate confirm Merrick Garland now?

I understand the argument from Leon Wolf for biting the bullet and pushing him through. I’ve toyed with it myself in earlier posts. But increasingly I think it’d be a bad move.

Garland is not a great choice, but he is not a terrible one, either. And more than anything, he is old (for a modern Supreme Court appointment) and will be up for replacement in probably 10 years instead of 20 or 30.

Republicans must know that there is absolutely no chance that we will win the White House in 2016 now. They must also know that we are likely to lose the Senate as well. So the choices, essentially, are to confirm Garland and have another bite at the apple in a decade, or watch as President Clinton nominates someone who is radically more leftist and 10-15 years younger, and we are in no position to stop it.

In fact, if I were the Republicans, my main concern right now would be that Barack Obama would withdraw Garland’s nomination today. The fact that Merrick Garland still exists as an option right now is a gift that should not be squandered.

Or, as Dave Weigel put it:

It’s a risk, especially since Hillary would be eager to impress the leftists who held their nose and voted for her in November by nominating a hard-left liberal for SCOTUS up front. If the election’s a wipeout and the Senate reverts to Democratic control, that hard-left liberal will be confirmed. Why shouldn’t McConnell and company take the mainstream liberal in Garland and deny Hillary an opportunity to swing the Court far leftward on day one? Especially since we have zero idea of who Trump would nominate if given the chance as president. Maybe you’d get a rock-ribbed conservative justice in the Scalia mold in that seat, but that’s not how you should bet.

I’ll give you three reasons why confirming Garland would be a bad idea. One: It’d be a concession by the Senate leadership that Trump can’t win this fall. That’s probably true, enough so to arguably make Garland’s confirmation worth doing, but Trumpers would resent the pessimism bitterly. That might cost Republican Senate candidates some votes this fall. Two: It’d play into the conservative narrative that McConnell caves too easily and the establishment GOP is effectively in cahoots with Obama. Never mind the fact that Democrats have most of the leverage on this nomination, with Garland or a more liberal nominee the two likeliest outcomes by far. If McConnell caves, some already demoralized conservative voters may decide that it’s not worth turning out this fall to save the Senate notwithstanding their antipathy to Trump. That would mean Senate incumbents suddenly have a problem on both flanks of the party, Trumpers and anti-Trumpers. That’s a high hurdle to clear. Three: Wolf thinks Obama might yank Garland’s nomination at any moment, making action by the Senate urgent. I don’t. Doubtless Obama would prefer a nominee further left, but Garland’s plenty liberal and he accepted a thankless task in agreeing to be nominated at a moment when Senate Republicans were swearing up and down that they wouldn’t confirm a replacement for Scalia this year. Pulling the nomination at the very moment Democratic victory in November becomes likely would be a grievous snub to a guy who volunteered to be a potential sacrificial lamb. It would be shabby even by Obama’s standards. Although, if McConnell’s really worried about this, he could simply issue a statement affirming that he has no intention of holding a floor vote on Garland before the election but he reserves the right to revisit the question in the lame-duck session. That would be a public signal to O that Garland might end up on the Court anyway. Obama would have no reason to withdraw the nomination after that.

One obvious move Trump should, and almost certainly will, make ASAP is to finally, finally, finally release that “list of judges” he claims to be working on for the Scalia vacancy. He could give 10 names, five centrist/moderate Republicans, five hardcore conservatives, and dangle it in front of Republican voters as an incentive for McConnell to continue to hold out. Heck, put Ted Cruz on there just to pander to disgruntled Cruzers. If there’s even a small chance that we’ll have a conservative justice in Scalia’s seat next year, most Republican voters will insist that the Senate maintain its boycott of Garland. It’s likely to turn out badly for them, but then pretty much everything does for Republicans these days.