Merrick Garland accepting the award for “Everybody’s Pal.”

The Clock Is Ticking: GOP Should Accept Merrick Garland While They Still Can

Hillary Clinton is already dropping hints that her SCOTUS selection will be more liberal. Meanwhile, some on Trump’s shortlist don’t even support him. For Congress, confirming Merrick Garland is their safest route.

When President Obama announced Merrick Garland as his SCOTUS pick back in March, he asked us not to treat Garland as a “political piñata.” Why would we? The name “Merrick Garland” was probably a tough one in middle school but surely the election discourse would never to stoop to– oh wait. Though we had not yet reached rock-bottom with this month’s lewdness, personal attacks and “locker room talk,” the writing was on the wall. When Merrick Garland was introduced to the national stage, he was already presented like a sacrificial lamb.

By blocking the vote, the Republican-led Senate immediately swiped left on their safest bet: a moderate nominee to replace Justice Scalia. President Obama’s non-partisan pick may not have been a peace offering so much as a chance to make the GOP look stubborn and ineffective, but it’s working. If Congress doesn’t take the bait and confirm a moderate nominee while they have a chance, Hillary Clinton will undoubtedly choose a more liberal candidate.

Mike Lee might be shortlisted for Trump’s SCOTUS pick, but he doesn’t even like Trump. (flickr)

And it’s anybody’s guess who Donald Trump would pick. He gave us a shortlist in the past, but given that he is rapidly losing support from within his own party, there isn’t much incentive for him to keep their interests a priority. His most recent list included Utah Senator Mike Lee, sitting Republican senator who isn’t supporting Trump. While it was most likely an attempt to win over Ted Cruz and few other mainstream Republicans, Lee wouldn’t even take the bait. “Senator Lee already has the job he wants which is why he is campaigning to represent the great people of Utah again this year. This new list does not change Senator Lee’s mind about Trump in any way whatsoever,” Lee spokesman Conn Caroll said in a statement. Not a great look for Trump’s ability to discern his allies.

During Sunday’s debate, Clinton dropped a few hints that her SCOTUS pick wouldn’t be as moderate or “big law” as ol’ Merrick. She criticized the Senate for failing to “do its job” by blocking Garland’s nomination, without actually mentioning him by name. (It was nice of her to avoid that pinata thing.) That being said, Clinton made it clear that she would fill the SCOTUS vacancy right away if elected, and would look elsewhere for new candidates, looking “broad and widely” to find a candidate that reflects the diversity of the US.

A few shortlists have already begun to circulate, and while nothing is confirmed, it’s clear that Clinton’s selection will not be as palatable to Republicans like a moderate Merrick Garland. Her possible nominees include Loretta Lynch, the attorney general of the Department of Justice, and Jacqueline Nguyen, a Vietnamese-American judge on the 9th Circuit Court of Appeals. If the GOP in Congress would stop being so stubborn, they’d realize Garland is their last moderate option.

Loretta Lynch, a possible Clinton pick. (flickr)

And what’s not to like? As the grandson of working class immigrants fleeing anti-Semitism, Merrick Garland graduated Harvard on a scholarship, and stocked shoes to put himself through law school. His humble upbringing is evident in his courtroom manner. “He’s not flashy,” Steve Vladeck, a law professor at American University told CNN. “[He] tends not to go out of his way to say anything beyond the minimum necessary to decide the case.” His reputation as moderate who sticks to the basics has earned him both Republican and Democratic admirers.

With more federal judicial experience than any other Supreme Court nominee in history, the credentials are certainly there. Judge Garland has served 19 years on the DC Circuit Court, and, as President Obama pointed out, “has shown a rare ability to bring together odd couples, assemble unlikely coalitions, persuade colleagues with wide-ranging judicial philosophies to sign on to his opinions.” Garland was confirmed to the court in 1997 with a bipartisan 76–23 vote, boasting a rare likability from both sides.

Obama previously considered Garland for the seats that ultimately went to Justices Sonia Sotomayor and Elena Kagan, two Justices that are less known for centrism and confirmed by a Democrat majority. It’s obvious that Merrick Garland’s bipartisan fanbase is what snagged him the nomination this time around. He’s a safe choice: he’s older and whiter than the other candidates rumored to be on Obama’s shortlist, and a guy so moderate and likable, he’s almost boring.

It’s a clear attempt to pressure Senate Republicans, especially those who will be facing tough battles for reelection, to peel away from Republican leadership and actually confirm a new justice. With Obama only around for a few short months, Congress is running out of time to you know, do their job. Garland makes for a perfect olive branch. Back in 2010, when the Senate searched for a successor to Justice John Paul Stevens, Republican Senator Orrin Hatch called Garland a “consensus nominee.” He’s already celebrated among Republicans, so if there is a nominee that would get confirmed under Obama’s last months, it’s Garland.

But so far, it hasn’t worked. Despite singing Garland’s praises in 2010, Senator Hatch sang a much different tune this year. In March, he said he felt the Senate should wait until next year to consider a candidate, echoing a steadfast consensus among his Republican colleagues. Some right-wing Senators are even saying that do not plan to have hearings on Garland, let alone vote on his nomination. Senator Pat Roberts, a guy who voted for Garland in 1997, told CNN he wouldn’t back the judge this time, noting it had nothing to do with the likable Merrick, and everything to do with the guy nominating him. “It’s not about the person, it’s about the process,” and by process he means vetting and voting on the SCOTUS nomination. You know, his job.

Despite Democrats in the Senate actively trying to recruit Republicans to consider the nomination (they even created a twitter handle @SCOTUSnom to help us get to know him!) most seem to be siding with Senate Majority Leader Mitchell McConnell’s vow to never let Obama get another SCOTUS on the bench.

So, why did Obama even bother? There’s a reason why people are throwing around the word “piñata” when describing Merrick Garland. He might never be considered by the Republicans, but that might be the point. Had this been Obama’s nomination in previous years, liberals would have been annoyed by Garland’s occasional conservative streak. If Republicans are too stubborn to consider a non-partisan pick like Garland, it not only exposes them to the accusation that they fail to do their job at the behest of party politics, but it will make them so unreasonable, it could hurt them at the polls in November. Either the conservatives come to their senses and confirm a moderate while they have a chance, or stick to a “vow” so seemingly childish that they lose the majority come elections. Moreover, if Republicans are too proud to confirm Garland, they’ll most likely deal with a younger, more liberal appointee under Hillary Clinton, or a total wild card under Donald Trump. Obama is essentially calling their bluff, and they should probably take the bait.

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