Jeff Flake: It's time to start thinking about confirming Merrick Garland

We all knew this was coming. I’m only surprised that it took this long.

To be clear, he doesn’t mean Garland should be confirmed now. He means in the lame-duck session, assuming Clinton does go on to win next month. Even so, it’s foolish for a Republican from Arizona, of all places, to be talking like this before the votes are cast. His state is in play. He needs GOP voters pumped to go to the polls, not demoralized, if only for the sake of reelecting his buddy McCain. I realize that Flake has been highly, shall we say, Trump-skeptical during the campaign but it’s silly to bring this up now when it’ll be on the table in less than three weeks anyway.

“I said if we were in a position like we were in in ’96 and we pretty much knew the outcome that we ought to move forward. But I think we passed that awhile ago,” Flake said. “If Hillary Clinton is president-elect then we should move forward with hearings in the lame duck. That’s what I’m encouraging my colleagues to do.”

The political calculus is straightforward: Better to deal with Garland now and avoid swallowing a more liberal nominee from Hillary Clinton…

“I’m saying that I’m not one to deny polls, particularly when they are overwhelming,” Flake said. And in the current crop of polls show a highly likely Clinton win, Flake said, “there is some accuracy there.”

Via Reason, Mike Lee was asked about the likelihood of confirming Garland in the lame-duck session recently during a debate in Utah for his Senate seat. What would we gain by doing that, Lee replied? All Democratic nominees vote the same way. Garland will be just as bad as anyone Clinton might appoint.

“Make no mistake: As a former law clerk . . . I don’t believe there would be a real substantive distinction, a real noticeable difference between the voting pattern of a justice who would be appointed by a President Hillary Clinton . . . and Merrick Garland,” he told reporters after the debate. “I just don’t think there is much, if any, difference.”

Lee argued that “the last Democratic nominee to the Supreme Court . . . who voted independently” was Byron White, appointed by John F. Kennedy in 1962.

“Not a single Democratic nominee to the U.S. Supreme Court since then has voted independently on those matters. Not one,” Lee said. “Republicans have been all over the map, all over the spectrum. Democrats vote in lock step. . . . That is how it works. I don’t think Merrick Garland would be any different. The only difference is his age.”

All true. Ain’t no hack as reliable as a Democratic SCOTUS hack. Hillary would have to go very hard left with her nominee to move the Court appreciably further left than Garland will move it. And unless Schumer nukes the filibuster for Supreme Court confirmations, a nominee that radical will likely be blocked by the GOP, forcing her to nominate someone more mainstream on her second try. Still, though, age is an important difference. Most modern nominees are in their 50s; Clarence Thomas was just 43 when he joined the Court. Garland will turn 64 years old five days after the election, making him the oldest rookie justice in nearly 50 years. If Clinton decides not to re-nominate him, she’ll almost certainly go younger with her pick even if she doesn’t go much further left. Depending upon how much younger, we could be looking at the left holding that seat for 20 years longer than they would have if Garland were appointed instead. Age is definitely a factor.

The best reason for continuing to table his nomination, I think, is to help drive a wedge between Clinton and the left beginning with her earliest days in office. If Scalia’s seat is still vacant when she’s sworn in, some Democrats will scream at her that she owes it to Garland to reward his patience by re-nominating him. Dems can’t let the GOP “win” and risk further incentivizing their obstructionism by giving up on him. She needs to set the tone for her administration by confronting them and forcing an up or down vote on his nomination. Progressives, though, will scream at Clinton that Garland was too old and moderate anyway and that the best way to punish the GOP for its obstruction is to go much younger and further left with his substitute. If Schumer has to nuke the filibuster to get him/her confirmed, so be it. We dutifully turned out for you in November despite our skepticism, the far left will say to Hillary, because you promised us you were really “one of us” and would govern as a liberal in office. Now it’s time to put up or shut up. I think Clinton would end up re-nominating Garland while assuring the left that there’ll be other vacancies in the four years to come, but that’ll further alienate progressives who are already angry at her over the Wikileaks revelations. Creating a situation for Clinton that damages her with her own base could be worth something to the GOP, but the potential price is a much younger, very left-wing justice instead of Garland. That’s the calculation for the lame-duck session.

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