We’ve said it before, and we’ll say it again: President Obama’s pick for the Supreme Court is very unlikely to get a hearing, much less to be confirmed, by the Republican-controlled Senate this year.
But a few Republican senators have indicated they’d be willing to at least meet with Judge Merrick Garland — and one, Illinois Sen. Mark Kirk, has said he thinks Garland should get a vote. (Maine Sen. Susan Collins has called for a hearing.) There’s a possibility, however remote, that more GOP senators could split with their party and endorse Garland’s consideration.
All this has raised questions of whether Republicans are softening on their blockade. To be honest, it doesn’t seem like it. Meeting with a Supreme Court nominee is not the same thing as voting for a Supreme Court nominee. Plus, the most important person in the Senate, Majority Leader Mitch McConnell , R-Ky., has consistently maintained that the Senate will not consider Obama’s nominee. And if McConnell doesn’t bring Garland’s confirmation up for a vote, it won’t come up for a vote.
But if there’s one thing this election cycle has taught us, it’s never say never. There are foreseen and unforeseen political events that could change Republicans’ calculations. So with the caveat that all of this or none of this could happen, here are four scenarios that could make Senate Republicans switch course and consider Obama’s Supreme Court nominee, ranked in order of most to least likely.
1. Independents in swing states get riled up
Make no mistake: Nearly every calculation made by both sides during this confirmation battle is rooted in electoral politics. That’s because the stakes are high. In November, the White House, the Senate and possibly the ideological swing of the Supreme Court is up for grabs.
Senate Democrats think Republicans’ “obstruction” of Garland is a winning campaign issue, especially when they can tie it to Donald Trump. They plan to hammer vulnerable Republican incumbents, like Sens. Pat Toomey of Pennsylvania, Kelly Ayotte of New Hampshire, Rob Portman of Ohio and Ron Johnson of Wisconsin, in their home states with this message: Your senator isn’t doing his or her job. They’re doing Trump’s bidding instead.
It’s a safe bet that operation won’t change the minds of many partisan voters. The open question is what independents will do. Democrats are betting the Supreme Court drama will sway these voters toward Democrats. Republicans are betting it won’t.
If Republicans are wrong and they sense a groundswell of opposition to their plan, Senate leaders could conceivably switch course and allow hearings — possibly even a vote. Keeping control of the Senate, after all, is their top priority.
“These are tough optics, I will admit,” Sen. Jeff Flake, R-Ariz., told CBS.
For what it’s worth, a recent Washington Post poll (taken before Obama nominated Garland) showed that independents think, by a margin of 2-to-1, that the Senate should hold hearings.
2. Republican senators meet with Garland and like him
Following Obama’s nomination of Garland, at least six GOP senators have indicated or even said outright they’d be willing to meet with the judge, despite the fact McConnell has said he wouldn’t.
Optimistic Democrats might read that as a sign that Republicans are starting to see the light — that Obama picked the most qualified person for the job, and if Republicans sit down with him, they’ll agree — and maybe even convince their colleagues to hear him out.
This, too, is plausible. Garland has received praise in the past from Republicans, and seven sitting GOP senators voted to confirm him to the D.C. Circuit Court in 1997.
But those same Republicans who said they’ll sit down with Garland have also indicated their meeting is not an indication they’re changing their mind about him. In fact, some have said they will meet with him just to tell Garland they won’t consider him.
“If I can meet with a dictator in Uganda,” said Sen. Chuck Grassley (R-Iowa), the chair of the Senate committee that would hold hearings on Garland, “I can surely meet with a decent person in America.”
3. Hillary Clinton is our next president
So what happens if President-elect Hillary Clinton indicates she’ll nominate a more progressive option to the court? Suddenly, Garland, who has clerked for conservative judges and is relatively moderate, might not look like such a bad option for Republicans.
Were that to occur, Sen. Orrin Hatch, R-Utah, and Flake floated the idea of holding a hearing on Garland in a lame-duck session. Flake said: “The only position I’ve had is, ‘Hey, I’m concerned about the direction of the court,’ and so if we come to a point where we’ve lost the election, and we can get a centrist like Garland in there, as opposed to someone like Hillary Clinton might appoint, then I’d go for it.”
But once again, reality sinks in here. McConnell told Fox and CNN on Sunday there would be no lame-duck confirmation.
White House chief of staff Denis McDonough, for what it’s worth, just said on “Fox News Sunday” that Obama would stick with Garland’s nomination in the lame-duck session even if Democrats win the 2016 election.
McDonough: We will stand by him from now until he is confirmed and he’s sitting on the Supreme Court.
4. Another court vacancy opens up
Yes, Republicans’ gambit not to consider Garland is politically risky. But they are betting the payoffs will be massive. If everything goes according to plan for McConnell, Republicans will successfully stop Garland’s confirmation process without political blowback. They’ll have a great election in November, and come January, they’ll have a Republican White House, a Republican Congress and the ability to nominate someone just as conservative as the late Justice Antonin Scalia, keeping the court’s ideological sway in their favor.
But those calculations could change if another spot opened up on the court between now and November — especially one of the liberal spots. Suddenly, instead of replacing a conservative with a moderate, Republicans can replace a liberal with a moderate. And wait until they (ostensibly) win November’s election to fill Scalia’s spot.
This, too, is a possibility, however far fetched. As I wrote in February:
Sometime during the new president’s first term, there could be long-awaited vacancies. The most likely slots to open up, judging by the ages of the justices, would be two liberal members – Ruth Bader Ginsburg (82) and Stephen Breyer (77) – and the court’s erstwhile conservative-leaning swing vote – Anthony Kennedy (79). No other member of the court is more than 67 years old.
We repeat: Never say never.
(c) 2016, The Washington Post · Amber Phillips