I’ve written about GOP strategy on Garland before, although not recently. The Republican dilemma is simple: Garland is a sort-of-moderate liberal, almost certainly less radical than whoever Hillary Clinton might choose if there’s a blue wave this fall and Chuck Schumer gets to rubber-stamp her pick next year. Mitch McConnell has blocked Garland to this point in the hope that Trump would win the election and a Republican would fill Scalia’s seat, but the less likely that becomes, the more incentive McConnell has to accept Garland as the least bad option available. It’s never looked less likely than it does right now that Trump will be filling the vacancy instead of Clinton, so the issue has new urgency. When exactly will Senate Republicans begin to take a second look at Garland?
They can’t hold hearings before the election, obviously. The best reason to support Trump has always been that the party can’t afford to let Clinton replace Scalia; confirming Garland would vitiate that argument and would be treated as the GOP effectively conceding the presidency. That would further enrage already enraged Trumpers and demoralize the rest of the party. It might even end up as a self-fulfilling prophesy, in which the Senate GOP fears a bloodbath in November downballot and ends up engineering that bloodbath unwittingly by pissing off every Republican voter in America. So they’ll wait until the lame-duck session for confirmation hearings — although the leaks that they’re moving in that direction probably won’t wait, and that alone is likely to further damage Republican morale. That’s one thing to look out for this week if more terrible polls start dropping for Trump, especially since Trump and his own team are moving towards war with the rest of the party:
Paul Ryan should spend more time on balancing the budget, jobs and illegal immigration and not waste his time on fighting Republican nominee
— Donald J. Trump (@realDonaldTrump) October 10, 2016
I can't keep my phone charged due to the mass volume of texts from people all over the country who will #VoteTrump but⬇️ballot not so much.
— Katrina Pierson (@KatrinaPierson) October 10, 2016
“Trump rips Senate GOP for Garland leaks” is a headline you’re apt to see soon-ish. All of this is straightforward for Republicans, but what’s less straightforward is how Democrats might play it. Do they go along with Republicans during the lame-duck hearings and rubber-stamp Obama’s pick, having spent many months now insisting that Garland has the right to a hearing, or do they filibuster Obama’s nominee(!) in order to hand the pick to Hillary? More importantly, does Obama stand by his nominee during the lame-duck session or does he knife Republicans by yanking Garland, claiming that he owes it to the electorate who just elected Hillary to let her choose the next justice? (He could cite Republicans to back him up on that, in fact. Their argument since the beginning has been that the next president, not the current one, should make the appointment.) That’s the risk Republicans are running right now by waiting on confirmation hearings.
What I think would happen is that Obama would defer to Clinton’s private wishes on the pick. Hillary has said publicly that she wouldn’t ask Obama to withdraw Garland’s name, but she’s refused to say categorically that she’d renominate him — an obvious pander to progressives, who wanted a more radical leftist for the Scalia vacancy. In fact, precisely because she’d start her term with a headache in being forced to choose between appeasing progressives with a far-left nominee or setting a centrist tone by nominating Garland or someone like him, I bet she’d actually prefer it if Garland was confirmed during the lame-duck. It would solve her problem, and if Garland ended up as a disappointment to the left while on the bench, it’d be Obama who takes the heat. It’d also be surprising to me if, after enduring a prolonged limbo, Garland was repaid by the White House for his patience by being kicked out the door so that someone more radical can be brought in. I’ve always thought he’d end up being confirmed; now it’s a question of when, and the likely answer is in December.
Gonna be interesting to see what sort of coalition McConnell and Harry Reid can muster to confirm him, though. Presumably all 46 Democrats will vote yes if that’s what Clinton wants them to do. Normally that’d be nowhere near the 60 votes required to beat a filibuster, but if Democrats win the Senate in November, the GOP will have no incentive to filibuster Garland. If they block him, all that stands between them and the most radical justice Hillary can find next year is Chuck Schumer’s willingness to preserve the minority’s right to filibuster SCOTUS nominees in the next term. Presumably 14 Republicans will vote for cloture and then a smallish majority of 55 or so senators will vote for confirmation. There’ll be enough newly reelected Republicans like McCain and enough outgoing centrists like Mark Kirk with nothing to lose to give Garland a majority.