Republicans Starting To Cave On “No Hearings, No Votes” For Merrick Garland?
Comments from one Republican Senator are raising the possibility we could see hearings and a vote on Merrick Garland during the post-election lame duck session of Congress.
It has been 168 days, nearly half a year, since President Obama nominated U.S. Court of Appeals For the D.C. Circuit Chief Judge Merrick Garland to the Supreme Court to replace Antonin Scalia, who had died suddenly more than a month earlier. At the time of Scalia’s death, conservative activists and conservative Senators jumped on the idea that there should be no vote to fill the vacancy until after the next President takes office. This position was quickly adopted by all of the Republican candidates for President, by Mitch McConnell himself, and by Senate Judiciary Committee Chairman Chuck Grassley. Conservative activist groups quickly made “No Hearings, No Votes” a priority issue for them and began warning Republican Senators that deviation from this position could have severe repercussions More importantly, notwithstanding the limited defections we’ve seen so far the Senate GOP Conference has remained largely united even in the face of polling that has shown that most Americans believe that the Senate should give the President’s nominee a hearing and a floor vote. With the primary season ending, though, and the probability of both Hillary Clinton winning the White House and Democrats narrowly retaking the Senate increasing, there seem to be some signs that the GOP may be reconsidering its position. The latest sign comes from Judiciary Committee Chairman Grassley himself:
Senate Republicans could relent on their hard-line stance in opposition to granting Supreme Court nominee Merrick Garland a confirmation hearing this year, Senate Judiciary Chairman Chuck Grassley said Monday.
The Iowa Republican said in February that “it only makes sense” that the upper chamber punt into 2017 holding hearings on a replacement for late Justice Antonin Scalia. Nevertheless, President Barack Obama nominated Garland to the high court in March.
Holding a Q & A at a meeting of the Sioux City Rotary Club, Grassley on Monday said there’s a widely accepted “understanding” that no Supreme Court vacancies be filled in the final year of a presidential term.
“It had nothing to do with Garland,” Grassley said, according to the Globe Gazette, referring to the Senate’s commitment not to give any SCOTUS nominee a confirmation hearing before a new administration takes over in 2017.
While unlikely, he added that Senate Republicans could change their position if enough senators push for a hearing after the November election, leaving the door open for Garland’s confirmation before the new Congress takes office should Donald Trump lose to Hillary Clinton.
Senate Majority Leader Mitch McConnell, however, has no intention of holding a hearing before Obama leaves office, his team told POLITICO on Tuesday.
“The leader has been clear, the next president will make this nomination,” said Don Stewart, McConnell’s deputy chief of staff for communications.
It’s admittedly not much, and it’s unlikely that the Senate will take any action during the limited amount of time they’ll be in session after Labor Day before Congress departs at the end of September for the final weeks of campaigning, but it does appear to be a sign that Republicans may end up reconsidering their position on the Garland nomination prior to the end of the year. So far, the GOP Caucus has remained united on the issue largely because there isn’t any evidence in the polls that they are being harmed by taking the position that the next President should be the one who makes the decision when it comes to a Supreme Court appointment that will have a significant impact on the direction of the Supreme Court, and the lower Federal Courts, for many years to come. Even if it is the case that Judge Garland is not as far to the left as other choices that President Obama reportedly considered before nominating him, there’s no doubt that Judge Garland’s confirmation would have a real impact on the Court going forward, specifically on those issues which have been decided on a 5-4 vote in recent years. Additionally, Garland’s presence would likely have an impact on what cases the court would accept for review to begin with. Given that, one could make a reasonable argument that the GOP Caucus does have a point when it argues that the selection of a new Justice should wait until the American people have had a chance to pick a new President. Even if one disagrees with this position, though, it’s easy to recognize the fact that, without evidence that they are being harmed by taking their current position, Senate Republicans are unlikely to change their mind. So far at least, there is no sign of any such harm and no sign that reversing position that would have a real impact on the battle for control of the Senate.
Notwithstanding all of that, it’s also not surprising that Senator Grassley is broaching the idea of at least holding hearings on the nomination after the election and, of course, if hearings are held there would be little reason not to let the nomination go to the floor for a vote. If Republicans manage to win the White House and maintain control of the Senate, of course, that would be unlikely to happen. In that case, it would be in the GOP’s political interest to let the nomination lapse when Congress goes out of session at the end of 2016, as it will as a matter of law, and let President Trump (yes, I know, ugh) nominate someone to replace Scalia. If Hillary Clinton wins the White House, though, Republicans would have an incentive to approve Garland’s nomination in order to deny Clinton the opportunity to select her own nominee when she takes office. It’s possible, of course, that Clinton would renominate Garland, especially if the GOP retains control of the Senate, but it’s also possible that she’ll pick someone younger and more politically liberal than he is in his place. If Clinton wins and the Democrats win control of the Senate, then that possibility would seem to become a near certainty. Confirming Garland during the lame duck period would allow the GOP to stop that from happening and, possibly, limit the impact of replacing Scalia to some small degree. That’s likely something in the back of Grassley’s mind at the moment, and probably the reason that he mentioned this possibility during the interview on Monday. If the election goes against the GOP, look for other Republicans to raise this possibility as well.
Seeing as how all this brouhaha is because they wanted to deny Obama his pick, this is a given. Not incentive, instinct. Why would they be more favorable to her then him?
I doubt Garland gets a second chance. Maybe a replacement for the next Judge to step down but not right off the bat. She’ll strike first and strike hard with all the political capital the Trumpocalypse will bring before Republicans will have a chance to bog her down. Once the Supreme Court issue is resolved, a lot of the following works can be accomplished with less fear of being undone or overturned.
Republicans had their chance at a reasonable moderate. They gambled on a stupid power play and they’re gonna lose big. You can bet Obama and Clinton have already planned out what to say when reality-stricken Senators come crawling back. It will be a lot more polite then they deserve.
I think President Obama has to make it clear that Garland’s nomination will be withdrawn November 1. The Republicans need to know that if they lose the Senate and Presidency they will have set the table for a younger more liberal justice. There is absolutely no reason to allow them to hedge their bet.
@Pete S: Unfortunately from what I have seen Democrats don’t play hard ball.
Garland will be the next SCOTUS justice. Either the Senate will confirm him this year, or Hillary will renominate him, and he’ll be confirmed. Here’s why:
Hillary should float that if elected she will heavily consider Obama as a Justice.
Garland confirmed by Christmas.
Although Obama could pull the nomination, I doubt he views his Presidential right/obligation to seat a Supreme Court Justice as nothing more than a political card for pimping Republicans.
I do, however, think that if the Senate comes back, Obama should let them know that, if they so much as roll their eyes at Garland during the confirmation process, he will pull the nomination and let them work it out with Hillary. So they better roll out the red carpet and strew it with rose petals for Justice Garland. Even if Hillary doesn’t get a Democrat Senate, how do they of “the people should be allowed to weigh in through the Presidential election” turn around and say the freshly elected President doesn’t have a mandate to seat the Justice of her choice, even, say a former President.
These “great leaders” have totally screwed the pooch on this one and, even though I think a functioning centrist Court is the most important issue here, the Senate “leadership” should be flogged and paraded in public square for this one.
I’ve predicted from the beginning that it will be Democrats that block the Garland confirmation.
The GOP panic about President Clinton and a Democratic Senate will get real in September. They can bet on a Democratic Senate Majority adopting the Nuclear Option rule for Supreme Court nominations in the new Senate. Even if it’s 50-50 with a Tim Kaine deciding vote. Especially if it’s 50-50.
Republicans will hold hearings and push for a confirmation. It won’t be Obama that pulls the plug on Garland. It’ll be the alt-left Senators that didn’t think Garland was liberal enough when Obama nominated him in the first place. They’ll be smelling blood and why not? With the Nuclear Option and Democratic Senate, the GOP are completely irrelevant to the confirmation process.
Both parties have already demonstrated their bottomless capacity for hypocrisy on both Nuclear Option and Election Year Supreme Court Nominees (Biden Rule). One more synchronized double flip layout with a twist on the exact same respective issues they were so adamant about in March is simply no problem if neither party has any shame.
Spoiler Alert: They don’t.
@Dividist: Wow. Both sides do it. Really deep, man.
Extra points for the “alt left” in the Senate. Yeah, those insane Commies like Al Franken and Barbara Boxer are just like the neo-Nazis at Breitbart.
Thank you so much for this wisdom.
Judge Garland seems like a reasonable, good person of integrity. These justices do not always turn out like some people think, or want. They can end up surprising people. Look at Judge Warren.
Doug: “Given that, one could make a reasonable argument that the GOP Caucus does have a point when it argues that the selection of a new Justice should wait until the American people have had a chance to pick a new President. ”
This is a lie, pure and simple.
@wr: Wow. So you are saying Democrats are angels and Republicans are the spawn of satan. I didn’t know. Thank you for your carefully considered analysis.
@Tyrell:
Warren wasn’t exactly a surprise. The GOP was a different party then Tyrell.
I read that he was nominated by President Eisenhower.
And why shouldn’t they? McConnell has played this extremely cynical game and Democrats should return the favor…when Hillary wins and if the Dems take back control of the Senate she should nominate a young liberal, shove that choice down McConnell’s throat, and sit back and watch as he won’t be able to do anything to stop her choice from being confirmed…
If Clinton wins Garland will claim major family issues and withdraw.
Steve
@Dividist: It’ll be the alt-left Senators that didn’t think Garland was liberal enough when Obama nominated him in the first place.
Alt-left? Would be laughable if it weren’t so pathetic. AS WR correctly says the equivalence is ridiculous. The Republicans are openly admitting that Alt-Right is white supremacist. So the progressives in the Senate are the left’s version of the alt-right?
@Dividist:
Dude, you do understand that it was MCCONNELL,the Republican Senate Majority Leader, who said the next President should fill Scalia’s seat?
President Obama would be perfectly within his rights to say on November 9, 2016 that the people have spoken and that in line with the wishes of Senate Republicans, he is withdrawing Garland’s nomination and letting President-elect Clinton have the choice.
I think that he won’t do that but it doesn’t matter. I have said ( and still believe) that a Republican majority Senate WILL not vote to put the fifth “liberal” Justice on the Supreme Court. To do that would go against four decades of Republican policy on judicial nominations that takes as its first commandment that there must always be a conservative majority on the Supreme Court. They have always insisted that a liberal Supreme Court majority would bring about liberal apocalypse. It is almost impossible for them to walk that rhetoric back and any Republican who votes to allow a liberal Justice on the Court can certainly expect a primary challenge come next election.
Chuck Grassley can whisper about maybe holding hearings on Garland in the lame duck but he is doing this only because he is facing a serious general election challenge. If he wins in November I guarantee that all talk of compromise will stop the day after election. I don’t expect the Scalia seat filled except with a President Clinton and a Senate majority in January. Hillary’s pick won’t be Garland, because let’s face it, Garland is a pick a Democratic President makes if they face a Republican Majority Senate. There is zero reason why a Democratic President with a Democratic majority Senate would pick Garland.
A more detailed case against Garland ‘s confirmation here. The core:
@Dividist:
KICK THAT STRAWMAN! KICK IT HARD!
@An Interested Party:
Thank you. I am glad to see that we are in complete agreement. As you clearly point out, Republican and Democratic pols in the Senate rationalize exactly the same behavior. Just different rationalizations but you get to exactly the same place.
I call this The Doctrine of False Non-Equivalence.
Which is to say, as you clearly agree, they are equally hypocritical.
@Mikey:
… and the comment I was responding to in kind was not a straw-man?
Okay. Whatever blows your skirt up.
@Dividist: Interesting so the Republicans response to people finding out about the fascist racist alt right is to label progressives as alt left. Might as well try I guess as the alt right is full of ugly things that most people would find repugnant. If the Republicans can muddy the issue by claiming the far left is the exact same aka alt left they might confuse the low info voters (aka the majority of voters)…
I expect to see that talking point on the MSM in the coming weeks.
@Dividist:
That’s right, it wasn’t. It was a satirical illustration of how ludicrous the false equivalence you drew was.
Yours was a strawman because it asserted a ridiculous position wr had not taken, which you then attacked.
@stonetools:
Oh, I have absolutely no doubt that Democrats will have truly excellent, really amazing, great rationalizations for why they should block the Garland nomination.
Just like the Republicans do/did.
@Matt:
Okay fine. BTW – I support and am voting for Hillary Clinton.
Hmm…I don’t recall Democrats doing to a Republican nominee what Republicans have done to Garland…perhaps you could share such an equally hypocritical move by Democrats from the past…
No matter what happens next, it is clear to me that our political processes are dysfunctional. The leader of the Senate majority was willing to delay the usual functioning of what is the constitutionally independent third branch of government in the hope of possibly getting some partisan advantage. In our system there are not supposed to be partisan justices. No one is the GOP justice; there is not supposed to be branded “conservative” or ” liberal” members of the court. The court is not a representative body; we actually have something called the House of Representatives for that function.
Mr. McConnell has a talent for stepping on every piece of dog-doodoo on the sidewalk.
@stonetools:
Got it. Another really well argued rationalization why Democrats in the Senate should block President Obama’s Supreme Court pick and not let it go to a vote.
@Matt:
I really meant authoritarian and not Fascist although there are quite a few of those too.
@Mikey:
My comment was also a “satirical illustration of how ludicrous” wr’s comment was.
So we’re good.
@wr: Al Franken and Barbara Boxer aren’t just alt-left commies, they are alt-left commie Jews! So, they’re just as bad as the alt-right Neo Nazis!
And so, we can safely conclude that both sides do it. Dividist is completely right. Or satirical. Or boring. One of those.
@Dividist: It wasnt, but hey, whatever blows up your skirt. 😉
@Dividist:
I don’t think the word “hypocritical” means what you think it means.
The point is this: Garland was a compromise pick. There are several well qualified people that Obama could have picked, of which Garland was the oldest, most moderate and most acceptable to Republicans ( Orrin Hatch, for example, loved him). One pundit put it this way, before the choice:
Since Obama he had a Republican Senate, he would pick Garland, but:
If Obama had a Democratic majority Senate, he would pick Watford (young, 50ish, liberal, black)
If Obama could pick anyone he wanted, he would pick Sri Srinivisan( probably the best credentialed)
There’s no hypocrisy in this. As the Brits say, horses for courses. Garland was the best pick for the political situation of March 2016. But political situations change. McConnell could have accepted Obama’s compromise pick, realizing that Garland was the best Obama could offer. He chose as usual, maximum opposition, on the chance that the Republicans could win in November. Now that the Republicans look like losing, Obama has a perfect right to say , “The political situation has changed. You wanted the next President to make the choice. Well, you get your wish!”
There’s certainly no hypocrisy in that. There’s no hypocrisy in the Democrats’ saying, “Look, we offered you a compromise pick which was not our preference. Now we want our pick, because elections have consequences.” And a Democratic pick would be young ( 50ish) and liberal.
I see no problem with that, because that’s exactly what the Republicans did when the shoe was on the other foot with Roberts and Alito. Indeed, the Democrats COULD have stopped Alito and Roberts ( Senator Obama wanted to ) but didn’t. And there was no talk of the Republicans being hypocritical then, pushing for the most conservative pick they could get.
@Matt:
It’s the same as a blatantly racist person accusing others of racism – they only understand it as a slur instead of a descriptive label. The negative social connotation is what bothers them, not the associated actions or beliefs. Alt-right is a name the movement in question came up with themselves and prefers!! It’s not an insult but damning by association. Since people like Dividist clearly only hear it as a pejorative, they don’t stop to think WHY the negative connotation exists but rejoin with a basic “Yeah, well so are you!!”
No interest in correcting horrid behavior, no recognition this is a self-created term by those who are proud of what they are, no thought given why the alt-right even exists and is considered repugnant by their own party (not to mention the country in general)… nope, a Trumpkin hears the term Alt-Right, picked up on the national disgust and immediately decided there was an Alt-Left and starts using it as an insult.
Thank god this crap is almost over, I’m running out of Advil.
All of this Supreme Court talk points up the problem that it just seems that maybe the Supreme Court has possibly gotten too “supreme”, maybe a lot more than Jefferson, Franklin, Adams, and some of the others ever intended or foresaw. Maybe it is time to consider some sort of elected terms 6 years .Maybe a recall process: look at the Judge Persky – Brock Turner flap.
@Tyrell:
So, you would favor a recall of Chief Justice Roberts or Justices like Clarence Thomas?
@Tyrell:
They’re not elected for a reason. The Founders deliberately didn’t allow it so they could consider cases without the pressure or need to be worried about optics in the next re-election cycle. Tenure exists for the same reason. You can impeach SC judges the same way you impeach the President – you need a damn good cause and plenty of evidence to prove its not for petty politics. It’s happened very rarely – only once if memory serves..
If they are “too Supreme” over Congress, then Congress should consider getting its act together for the necessary corrections/override laws or the states should try for an Amendment. The checks and balances of old still work, just not the way partisans like.
@Dividist: I see that you can’t come up with a Democratic example of what Republicans are doing to Garland…hmm, that seems a bit hypocritical on your part…
@Dividist:
You sound like the kind of guy who gets upset when he can’t get the sales price six months after the sale is over.
The Senate was offered a nominee. Republicans opted to snub the constitutional requirement to advise and consent because they thought it would help them. But then when their gambit fails, they then want to have the option to flip flop because the thing that they rejected turned out to be their best alternative.
To which I say: F**k those people. That’s the kind of thing that I would expect from a petulant teenager, not from adult legislators.
Garland should be a limited time offer with an expiration date, lest the GOP comes to believe that melodrama produces no consequences. The era of Big Tantrum Republican Government needs to come to an end.
@Pch101:
You sound like the kind of guy who wants to litigate what the definition of “is” is.
My position is perfectly consistent.
I think the Republican Senators should have, should now, and should in the future hold confirmation hearings and take a vote on the Garland nomination before the end of the year.
I think the Democratic Senators should have, should now, and should in the future hold confirmation hearings and take a vote on the Garland nomination before the end of the year.
I think if either or both Republicans or Democrats change their positions on the Garland nomination process to the position they were castigating in the other party a few months ago then they are, in fact, hypocrites.
Pretty simple really.
@Slugger:
I’ll agree with you there. While within their constitutional prerogative, it was and is a mistake for McConnell and Senate Republicans to not hold hearings and a vote on Garland’s confirmation. A mistake I hope to see them correct when they return from recess.
@Dividist:
So, Republicans should be able to screw with the process for as long as they like, then suffer no consequences.
Meanwhile, you’re going to blather on about an alt-left that exists only in your imagination.
Got it. Thanks so much for your valuable contribution.
Garland will be in the Supreme Court. The Democrats can´t afford to reject to even have a vote for a SC nomination from the First Black President. If Hillary nominates anyone else that will sound as an attack on President Obama – unless Hillary nominates President Obama himself, but I don´t think that Obama would want it.
@An Interested Party:
I am sure you know the history of dueling Supreme Court nominations as well as I do, and the general futility of rehashing that partisan history in a political comment thread (as much fun as I am sure we all would have covering all the same ground yet again).
Here is a better test. My initial comment was a prediction. That prediction will either happen or not before the end of the year. The degree to which Republicans and Democrats are hypocritical will be determined by events.
If Republicans do not hold hearings and a vote my prediction is wrong.
If Republicans do hold hearings and the Garland confirmation vote is not blocked by Democrats, you are correct and the Democrats have not done what the Republicans did and are not as hypocritical.
If Republicans do hold hearings and the Garland confirmation vote is blocked by Democrats, then I am correct, the Democrats are just as hypocritical as the Republicans and the Doctrine of False Non-Equivalence is confirmed.
TBD
Republicans have gambled successfully that blocking Merrick Garland would cost them nothing, and they’re right.
Republicans have been obstructing the President at every turn for nearly 6 full years and they have – with the exception of the 2012 re-election of Obama – paid no political price for this. In fact they’ve taken over and dominated the House, and now control the Senate. Two shutdowns of the government and threats to let the federal government default have not cost Republicans one House or Senate seat.
Unless a Democratic president rescinds Garland’s nomination and proposes a younger more liberal leaning person, Republicans will clearly have won this battle
@Dividist:
You seem to think that Garland is the One Perfect Supreme Court Choice, and anyone who votes against Garland is a priori hypocritical. I ‘m not sure why you feel that way. He was a fine choice, and should have been confirmed. But he is certainly not the Republican’s best choice and so they opposed him in the service of the conservatives’ long standing policy that the Supreme Court must be majority conservative. They are quite clear about this. Grassley has said openly that there is nothing wrong with Garland, other than that he is not a conservative. Because of that “failing,” they were willing to violate long standing tradition to refuse to even hold a hearing.
On the other hand, Garland is not the Democrats’ best choice. Obama would have never nominated him if he had a Democratic Senate majority. Very few people doubt that. He is there only because of political happenstance. Now he still might be confirmed, and if he does, good. He’ll be a fine Justice . But if he doesn’t get confirmed, and Clinton nominates someone else, that choice is likely to be as good or better. I don’t see any great moral principle at stake here, but you apparently do. Oh well.
@Andre Kenji:
I’m sure that neither Obama nor any Clinton voter would hold it against Clinton if she went with someone other than Garland. I think Obama himself would have picked someone else if the politics were different.
I’ll tell you that there is a strong consensus among liberals that Clinton should pick a young liberal next year if she has a Senate majority. Clinton’s Supreme Court choices are likely to be her only lasting achievements of her first term, since the House will most likely remain in Republican hands and will not pass any of her legislative proposals. That means her choices are going to have to count.
@stonetools: “a young liberal”: no. We don’t need a court full of judges who are so far out in left field they need a fielders’s glove and sunglasses.
This country needs judges who will represent the American middle class working people and will follow the Constitution, not some sort of social or political agenda. And it should not be based on some political favors and payback. Preferably a military veteran and someone who has had to live pay check to paycheck at some point in their life.
@Dividist: Oy, why not just cut to the chase and write “all politicians are icky” and be done with it…I mean, that wouldn’t be accurate, as there is not a “both sides do it” case here to be accurately made, but at least you would be more succinct…
@stonetools: Garland is a pretty decent man: he at least deserves the same treatment as Clarence Thomas and Robert Bork: hearings and an up and down vote. And Barack Obama has the right to make a SC nomination vacated on his term. It´s simple as that.
Anything other than that means accepting the idiotic rationale from the Republicans that “people should have a choice” or anything like that.
@Tyrell:
In other words someone compleatly different then any of the conservatives on the court.
It’ll be garland, like i’ve explained before, but a younger more liberal person would be great too. Regardless, before 12 months have passed we’ll have a Supreme Court that is 5-4 liberal, and after another year or two, 6-3 liberal.
And it’s never going back.
I want NC to pass some more racist voting laws, and all those dumb hillbilly states to pass some more abortion restrictions, just so i can eat popcorn and watch the next SCOTUS destroy that shït with Extreme Prejudice.
My big curiosity is about this: assuming Garland gets on the bench this fall in the lame duck, when Hillz apponts her next SCOTUS justice, presumably after Kennedy retires (or less likely, Breyer) will she nominate the first woman to be Chief Justice, replacing Roberts?
Thor,
Roberts will be Chief Justice until he retires or otherwise leaves the Court. There is no mechanism for changing who the Chief Justice is otherwise.