Last week, President Obama nominated Merrick Garland to replace the vacancy on the Supreme Court created by the death of Justice Antonin Scalia. Does Garland have a chance of actually being confirmed by the Senate? Probably not, even if Hillary Clinton becomes president-elect with a pending Democratic Senate majority. Almost every signal suggests that Republican senators will remain committed to obstruction.
To start with the easy question first, you can forget about Garland getting confirmed before Election Day. Mitch McConnell has taken this position since before Scalia's funeral and he reiterated it unambiguously immediately after Garland's nomination was announced. And he's backed up by the Republican conference in the Senate. There will be no hearings, let alone a vote, before the election. Even some blue-state senators with the most to lose from Republican obstructionism, like New Hampshire's Kelly Ayotte, are reiterating their opposition to allowing the nomination of Garland to proceed. Mark Kirk, who represents Garland's home state of Illinois and is facing an uphill battle against Democratic challenger Tammy Duckworth, has shown more openness, but he's not going to cause McConnell to budge.
And, fundamentally, this makes sense from a Republican perspective. Garland wouldn't be the first choice of most liberals (myself included.) But his record indicates that he would fit comfortably within the liberal wing of the Supreme Court. Garland might disappoint liberals on some civil liberties issues, but shifting the median vote of the Supreme Court from Anthony Kennedy to either Stephen Breyer or a close facsimile of Breyer would be the biggest shift in the Court's center of gravity since the Nixon administration. Even if Senate Republicans are skeptical about their chances of winning the White House in November, the stakes are high enough that they have no reason not to gamble and hope that Donald Trump or Ted Cruz names Scalia's replacement.
But what if Hillary Clinton wins in November and brings a Senate majority on her coattails (or Trump's anti-coattails)? Utah Sen. Orrin Hatch, a former head of the Judiciary Committee himself, has suggested that Garland could be confirmed by the lame-duck Senate after an election. And there's a superficial logic to it — Garland is about the best nomination Republicans could reasonably expect from a Democratic president (particularly considering that Garland is 63, about a decade older than the typical contemporary nominee), so why not take what you can get?
But, on closer inspection, it's hard to avoid the conclusion that this is not happening. Texas Sen. John Cornyn, the second-most powerful Senate Republican, popped Hatch's trial balloon, and he will almost certainly prevail.
One daunting problem a Senate majority that theoretically wanted to confirm Garland would face is a very compressed time frame. Even relatively streamlined Supreme Court nomination processes generally require more time than a lame-duck Congress would have. Only a very focused Senate with a strong consensus in favor of confirming Garland could move a nomination that quickly through the famously sclerotic chamber.
And there's no way the will and consensus will be there. Tea Party senators will almost certainly oppose confirmation for any nominee, period. Cornyn's opposition in itself would probably be fatal. And not all of the likely opposition will come from the Republican side of the aisle. Democratic senators who would either prefer a more liberal nominee than Garland or who believe that president-elect Clinton is entitled to make her own selection are also likely to gum up the works. I doubt there would be a majority in favor of confirming Garland in a lame-duck Senate, and even if there was, the large minority opposed to it would almost certainly do what the Senate does best: stop that majority from acting.
And, again, this is not necessarily even irrational from a Republican standpoint. Even assuming that a Democratic Senate majority would blow up the filibuster and get a Clinton nominee confirmed, it's probably not hugely important to most Republican senators whether Garland or someone marginally more liberal than Garland gets confirmed, and it's certainly politically preferable for Republican senators with a wary eye on primary voters that any Democratic nominee get confirmed without Republican support.
Needless to say, if Trump or Cruz wins, they will get the next nomination no matter what. And if Clinton wins and Republicans retain the Senate, they will almost certainly just try to prevent Clinton filling the vacancy rather than confirming Garland.
Merrick Garland should be honored to have been nominated to the Supreme Court. But the only way he will actually serve on it is if he's nominated by Hillary Clinton.
