In a Couple of Weeks, Merrick Garland Will Discover His Fate

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Supreme Court nominee Merrick Garland has been waiting patiently for months to discover his fate. Here is Rick Hasen’s prediction via Twitter:

Here’s why I think @EdWhelanEPPC is wrong and Judge Garland gets confirmed in lame duck IF Democrats take Senate. First, Obama will be loyal to Garland and not withdraw nomination and Garland won’t withdraw unless Clinton asks. Clinton won’t ask despite pressure from the left to withdraw Garland for younger and more liberal candidate.

Getting Garland out of way during lame duck clears her first 100-day agenda without a nasty Supreme Court fight that eats other things. RBG has signaled she and/or Breyer will leave the court while Dems still control Senate (before 2017). This means she can get 1 or 2 more liberal Justices on Court and/or make it a big issue in the midterms, in the hopes of turning about Dem turnout problem in the midterms. With Garland done in [lame duck], Clinton has very good chance of 1, and some chance of 2, liberal appts before 2018 elections.

This is kinda sorta my take too. I agree that Obama will be loyal to Garland. That’s all part of the implicit bargain when he nominated him. And I agree that Hillary Clinton will go along with that, partly for the reason Hasen outlines, and partly because it demonstrates a deeper loyalty: not just from Obama, but from Team Obama, which Hillary is part of. I think that was part of the implicit bargain too.

But will Republicans go along and confirm him? On the one hand, they’ve said they won’t, and their base (i.e., talk radio) will go ballistic if they renege on that promise. On the other hand, in the real world (i.e., not talk radio) they know perfectly well that Garland is the best they’re going to get. If they hold out, Clinton will nominate someone more liberal, and Harry Reid has already promised that if they go into endless obstruction mode, Democrats will nuke the filibuster and confirm Clinton’s choice.

So here’s where this leaves them. If they break their promise, they’ll be tarred as feeble RINOs who pretend to be conservative but crumble at the first sign of Democratic opposition. If they keep their promise, they’ll…be tarred as feeble RINOs who pretend to be conservative but always have some lame excuse for losing. We don’t control every branch of government. What could we do? What a bunch of whiners.

In other words, talk radio is going to scorch them no matter what happens. This means that if they’re smart, they’ll go ahead and confirm Garland. It’s their least bad option.

That doesn’t mean it will happen. Fear of the base is powerful in the Republican Party. Still, the GOP leadership has some decisions to make, and how they’re going to handle the tea party faction is one of their most important ones. There’s not much question that they have to take them on sometime. The only question is whether November 9 will be the time.

NOTE: If Republicans hold onto the Senate, all bets are off. They’ll still have some leverage in the next Congress, and might reasonably think they can negotiate a better candidate with Hillary Clinton.

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