Sen. Mike Lee, R-Utah, and Sen. John Cornyn, R-Texas, confer at the start of a Senate Judiciary Committee hearing shortly after President Barack Obama his nominee to the Supreme Court, on Capitol Hill in Washington, March 16, 2016.
Photo by J. Scott Applewhite/AP

Will Merrick Garland be confirmed in the lame-duck session?

Updated

When it comes to the future of President Obama’s nomination of Merrick Garland to the Supreme Court, Republicans haven’t quite gotten their message straight. 

As Garland began his courtesy calls on senators Thursday, beginning with judiciary committee member Sen. Patrick Leahy, a flurry of conflicting messages emerged from Senate Republicans. Utah Sen. Orrin Hatch told reporters hours after the announcement that he was open to confirming Garland in a lame-duck session if Hillary Clinton is elected president. The implication was that Garland would be preferable to someone younger and more liberal. 

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“A lot depends on who’s elected,” Hatch told NPR in an interview that aired Thursday morning. When host Renee Montagne remarked that it sounded like “the strategy has been revised” to open the door to a lame-duck confirmation, Hatch did not dispute it. 

Arizona Sen. Jeff Flake was even more explicit. “For those of us who are concerned about the direction of the court and wanting at least a more centrist figure than between him and somebody that President Clinton might nominate, I think the choice is clear — in a lame duck,” Flake said Wednesday. 

Immediately, Democrats gleefully pointed out that such a proposition undermined the claim that Republicans were blocking an Obama nominee out of principle rather than politics. “The words ’lame duck’ are not in the Constitution. If they can have a hearing in the lame duck, they can have a hearing now,” said Minnesota Sen. Amy Klobuchar, according to Bloomberg News. 

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No wonder Republican party whip and Texas Sen. John Cornyn took to the floor around noon Thursday to shoot down the proposition. “I know there’s been some members of the press who asked about, well, if not now, how about the lame-duck session of the Congress,” he said. “I think that is a terrible idea. If you believe in the principle that the American people’s voice ought to be heard, it makes no sense to have an election and then to do it and not honor their selection. I know some have expressed some concern about that, but I for one believe we ought to be consistent.”  

Even if the Republicans buckle under a Clinton victory – and a possible return of Democratic control to the Senate – such a confirmation process would have to be swift. Since refusing to hold a hearing on a Supreme Court nominee entirely is without historical precedent, it is hard to gauge how long the Senate would need or how much it would follow typical process in the lame-duck session. According to a tally by the New York Times, the current justices waited between 50 (Ruth Bader Ginsburg) and 99 (Clarence Thomas) days between their nomination and confirmation. But if the Senate Judiciary Committee only begins hearings after the November election, Garland will have waited nine months just to have his nomination raised in the committee. 

For the three most recent appointees to the court – Justices Elena Kagan, Sonia Sotomayor and Samuel Alito – the Senate Judiciary Committee’s hearings lasted between three and five days, followed by a committee vote two to three weeks later and a full Senate vote a week or two later. Of course, in none of those cases did the party that controlled the Senate refuse to even consider a nominee. 

Merrick Garland, SCOTUS and Supreme Court

Will Merrick Garland be confirmed in the lame-duck session?

Updated