Thursday marks 50 days since President Barack Obama stood in the White House’s Rose Garden to announce Judge Merrick Garland as his pick to succeed Supreme Court Justice Antonin Scalia.
The day has come and gone when, if this nomination had proceeded like any of the ones that preceded it, Garland would have been due to begin confirmation hearings in the Senate.
Instead, the seemingly unchanged resolve of Senate Majority Leader Mitch McConnell and a circus-like presidential election have pushed Garland’s nomination largely out of public view. That doesn’t mean, however, that a small army of activists and political consultants have given up on pushing Senate Republicans on the issue, or that legal groups have stopped offering their own vetting of Garland and urging that he get a hearing. This week, Obama himself came out to stump on Garland’s behalf, giving a series of interviews to local reporters in key states.
The clearing of the 2016 Republican field offers a newly unambiguous line for these Democrats: Trump. “We have the political high ground on this,” argued Brad Woodhouse, president of the advocacy group Americans United for Change, which is working on the Garland efforts. “You add to this the argument you can make to swing voters — that what the senators are telling you is we want Trump to appoint this Supreme Court justice.”
Even if Republicans don’t cave and the election arrives without Garland on the court, Democrats at least have an issue with which to chip away at the Republican senate majority. “Obviously, Donald Trump is something that I’m going to be talking about, especially in regard to the Supreme Court,” Ohio Democrat and Senate candidate Ted Strickland told Politico this week.
Republicans profess to be unperturbed, maintaining their line that the next president should fill the seat. Their less-spoken logic is that the conservative base would be inflamed by the prospect of a fifth vote appointed by a Democrat outweighs any other political cost they’ll pay. Senate Judiciary Committee Chairman Chuck Grassley, who is up for re-election this year, even said Wednesday that he wasn’t worried about Trump potentially naming Scalia’s successor. “I think I would expect the right type of people to be nominated by him to the Supreme Court,” Grassley said.
For weeks, the Constitutional Responsibility Project, the group formed to push for Garland’s confirmation, has been hitting senators like Grassley at home with protesters at their town hall meetings and rebukes in their local newspaper editorials. Their message: “Do your job.”
“It resonates with people,” said Woodhouse. “It hits home with people because Washington not doing its job under Republican control is what everyone thinks about Washington.” In other words, if they’re lucky, the campaign will jibe with the anti-establishment sentiment witnessed among both liberals and conservatives in the presidential primary—ironically, on behalf of the not exactlyrenegade chief judge of the United States Court of Appeals for the D.C. Circuit.
The operation is now expanding from six initial states and senators targeted in the last congressional recess — New Hampshire with Sen. Kelly Ayotte, Iowa with Sen. Chuck Grassley, Illinois with Sen. Mark Kirk, Wisconsin with Sen. Ron Johnson, Ohio with Sen. Rob Portman and Pennsylvania with Sen. Pat Toomey — and adding North Carolina, Arizona and Missouri to its list.
Woodhouse counts as a victory a poll released on April 20 by New Hampshire’s WMUR that found a tie between Ayotte and her Democratic opponent, Gov. Maggie Hassan. The accompanying analysis noted, “Ayotte’s support for the Senate Republican leadership’s refusal to hold a hearing on Supreme Court nominee Merrick Garland appears to have hurt her in the eyes of voters.” (Ayotte told CNN, “I don’t believe the poll.”)
A much-touted RedState article called for Republicans to confirm Garland now as the lesser of two evils. With Trump at the top of the ticket, “Republicans must know that there is absolutely no chance that we will win the White House in 2016 now,” wrote Leon Wolf. “They must also know that we are likely to lose the Senate as well.” Better then to avoid a Clinton appointee in 2017 who could be younger and more liberal than Garland. So far, however, conservatives for Garland seems to be an outlier.
Contentious hearings and even rejections of Supreme Court nominees are not an anomaly; all but ignoring the president’s pick is. Still, key legal groups are trying to maintain some semblance of normalcy. On Thursday, the Lawyers’ Committee for Civil Rights Under Law released its report on Garland’s record on civil rights, including criminal justice and anti-discrimination law.
The report, though generally positive on Garland, notes that there is much that isn’t known about his record on many civil rights issues because of the administrative law focus of the D.C. Circuit. “I think that it is important that we now have hearings so that we can fully understand, and so that the public can understand, the kind of jurist that Judge Garland will be,” said Kristen Clarke, the group’s president.
She added, “I think that the public is starting to fully grapple with the fact that we have a court that may not be able to resolve some of the grave controversies and questions that come before it. We have a court that at eight members faces the risk of deadlock.”
That deadlock is already partly underway. The court has recently shown a reluctance to take as many new cases as it has in previous years. In some cases, the effect may be positive for liberal policy goals. A 4-4 decision in a key union case this term left intact the current arrangement by which public sector unions are funded, thanks to an earlier win at the liberal 9th Circuit Court of Appeals. Coming decisions on immigration, abortion rights and contraception may end in a tie, too, effectively leaving in place lower court decisions and limiting the impact to parts of the county.
At least one liberal scholar thinks that outcome may not be so bad, though he too is an outlier. “We live in Kennedy’s America,” said Eric Segall, a law professor at Georgia State University, referring to frequent tie-breaker — at least in the odd-numbered court —Justice Anthony Kennedy. An eight-member court limits that unpredictable justice’s power and puts it in the hand of dozens of circuit court judges, many of whom are more progressive. “The justices will search really hard for compromise,” argued Segall. “I think that’s a good thing for America.” (It may not be a good thing for the women seeking abortions in the conservative 5th Circuit Court of Appeals, which upheld a strict abortion law currently being considered by the Supreme Court.)
Like it or not, will an eight-member court last? That, again, depends on what happens in the election.