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Merrick Garland Shouldn't Get His Hopes Up

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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If Hillary Clinton wins in November, will the lame-duck Republican Senate confirm Judge Merrick Garland to the U.S. Supreme Court? Last week, Clinton said she would look for diversity and wouldn’t feel bound to renominate Garland, which in theory should give Republican senators more reason to confirm Garland, before Clinton can nominate a more liberal candidate.

Yet a careful analysis of Republican senators’ incentives in the case of a Democratic win in November points the other way. If Republicans lose the presidency, the party will enter an intense period of self-reflection and disarray. And if they also lose the Senate, the disarray will be greater still.

Under those conditions, it seems most likely that Republican senators wouldn’t want the final act of their majority session to be acquiescence to the judicial candidate nominated by President Barack Obama. Instead, looking to future primary challenges, they’ll have reason to reject Garland by denying him a vote -- even if that may lead to a more liberal Supreme Court in the long run.

To see why Republican senators’ immediate motives might well outweigh the broader conservative interest in getting the most moderate Supreme Court nominee possible, you have to consider the difference between ideology and partisanship, and the vulnerabilities of Senate candidates subject to primary challenges from the right.

From an ideological perspective, the wisest thing for conservative Senate Republicans would be to confirm Garland. As Democratic nominees go, Garland is about as centrist as can be imagined. On the U.S. Court of Appeals for the D.C. Circuit, he has a reputation as being pro-prosecutor, a result of his years serving in the Department of Justice. Although Garland has long been on the short list for a possible Supreme Court nomination, to his credit, no one seems to think he’s a Trojan horse who would be more liberal on the court that he has been as an appellate judge.

Whomever Clinton might nominate would almost certainly have to be more liberal than Garland. That she would like to name a justice of color adds to that probability.

What’s more, even if Clinton nominated another centrist similar to Garland, such as Judge Sri Srinivasan of the D.C. Circuit, that nominee would almost certainly be younger than Garland. Srinivasan is 49 to Garland’s 63. A younger nominee is ideologically bad for Republicans, because he or she will probably last longer on the court.

But long-term ideology isn’t what gets senators elected -- or blocked from re-election. Especially if they suffer a major defeat in November, Republican senators will have to worry about what’s going to happen to them and their party in upcoming re-election battles.

Uncertainty will reign. Some Republicans will say the party has to tack back to the center. Others, like Texas Senator Ted Cruz, will inevitably argue that the Republicans went wrong by nominating someone wasn’t a true movement conservative but rather a centrist populist who broke the traditional Republican alliance between business interests and white social conservatism.

Republican senators will have to worry about being challenged from the right in future primaries. They will also have to worry about populist challengers. In both cases, Republican senators will worry about being described as having sided with the hated Obama.

Worse, the moment Garland joins the liberal side in any publicly salient Supreme Court decision, the future opponents of sitting Republican senators will be able to criticize them for confirming Garland.

That’s a significant cost in those primaries -- and on its own would probably be enough to stop most Republican senators from voting for Garland in the lame-duck session.

But there’s more. Republicans anticipating Clinton’s presidency would have something to look forward to in a robust challenge to her Supreme Court nominee, whoever that is. If Republicans control the Senate in a Clinton first term, they would potentially be able to hand the Democratic president an early defeat.

Even if the Democrats win the Senate in November, Republicans could anticipate using the filibuster against a more liberal nominee than Garland. The deal that followed the Democrats’ invocation of the so-called nuclear option in 2013 eliminated the filibuster for most judicial appointments. But it preserved the option for Supreme Court nominations. The Republicans could therefore filibuster without provoking the Democrats into saying that they had violated the Senate’s filibuster rules.

True, keeping the Supreme Court seat empty even longer could make the Republican senators look obstructionist. But what do they have to lose if they’re facing a Democratic president and Democratic Senate?

The upshot is that Garland’s chances for confirmation now seem smaller than they did a few months ago. Democratic efforts to draw attention to the empty seat don’t seem to have had any serious impact beyond the Democratic base. Republicans might have to sacrifice a more liberal court to protect their individual political interests. But for elected politicians, that’s an easy trade to make.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net