How Garland Gets Confirmed Before the Election

I haven’t checked the transcripts or anything, but I’m pretty sure President Obama’s pending Supreme Court nominee, Merrick Garland, was never mentioned at this week’s Democratic National Convention. Garland’s nomination has now been pending 135 days—longer than any Supreme Court nomination in history. And this is due to all-out, unprecedented obstruction by the Republicans. So it’s a little odd that the Democrats never mentioned Garland during their convention, and never used the Republicans’ obstructionism as a punching bag. Why wouldn’t they use the DNC stage to hit the Republicans hard on this?

I have a theory. Some people might say the Supreme Court just isn’t that important to Democratic voters; some might say too much talk about Garland or the Court would’ve reminded Republican-leaning voters who don’t want to vote for Trump of the only defensible reason to do so. But I think there might be something else going on—something more subtle and strategic.

Hillary Clinton is about to get a bounce in the polls. It’s a given. Candidates almost always get a bounce after their party’s convention (even Trump got one). And the DNC just had a particularly successful convention. According to national tracking polls, Clinton still has a razor-thin lead, even after Trump’s bounce (42.9% to 42.5%, as of this writing)—so her post-convention bounce should put her up by at least 3-4 points going into August. Maybe more.

Meanwhile, the Republicans currently hold 54 seats in the Senate. The Democrats need to flip only five of those seats to win back a majority—and forecasts show seven GOP seats are up for grabs, with three more looking potentially vulnerable. That’s as many as ten seats within reach, when the Democrats need only five. In other words, if the Democrats get strong voter turnout in some key states this November, they could win not only the presidency but also a strong majority in the Senate. And of course it’s the Senate that confirms Supreme Court nominees.

What am I getting at? Well, right now the conventional wisdom is that Republicans are blocking Garland’s nomination on the outside chance they can win the presidency and fill Scalia’s seat themselves; and if Clinton wins, they’ll just confirm Garland after the election, during the lame duck session. This plan will work, even if the Republicans lose the Senate, because they’ll still hold the majority until their replacements take office in January. The only way this doesn’t work is if Garland’s nomination is withdrawn. So what if the Garland nomination is withdrawn?

Look, I believe Obama nominated Garland because Garland is who he actually wants on the Court. But the Republican pitch on filling Scalia’s seat is “the voters should decide.” I’ve already explained why that doesn’t make any sense—the voters decided who should fill Supreme Court vacancies when they elected Obama. But a pitch that’s good for the goose is good for the gander. The GOP has handed Obama an excuse to withdraw Garland’s nomination the morning after the election. (Obama: “Guys, guys, you wanted to let the voters decide, and the voters have decided they want Hillary Clinton to fill this seat.”)

Do I think Obama would actually withdraw Garland’s nomination? I didn’t a week ago. But that was before we witnessed an entire week of the DNC, packed with speeches about Democratic goals and priorities—with plenty of talk about Supreme Court decisions that need overturning and plenty of promises to nominate justices who will overturn them—but not a single mention of confirming Merrick Garland.

My theory: If we get deep into August and the polls are showing not only a strong lead for Clinton but also promising leads in enough of those senate races, it will take only credible whispers of withdrawing Garland’s nomination to make the Republicans nervous enough to go ahead and confirm him before the election. And how do you create a credible threat of withdrawal? By taking the stage before millions of viewers for a week to talk about goals and priorities, and the importance of the Supreme Court, without mentioning Garland. There was an effort to rally Democratic voters behind the importance of appointing the right people to the Supreme Court—but no effort to rally Democratic voters behind Garland. Why? Because absenting Garland from the DNC was a signal. The Party didn’t commit itself to Garland. Clinton didn’t commit herself to Garland. Even Obama didn’t push for Garland. The signal: after this week, the possibility of withdrawing Garland on November 9 is real.

So watch the polls. Senate Republicans are already holding pro forma sessions throughout the summer, to prevent Obama from recess-appointing Garland without them. If they get nervous enough about the polls, it won’t be too hard to pull together an actual session to vote on Garland. They don’t even need hearings, which aren’t required—because everyone already knows Garland is supremely qualified for the job. All they need is a simple majority present to vote. And it could happen before the Court begins its October Term.

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