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Have Democrats Given Up on Garland?

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By Casey C. Sullivan, Esq. on August 03, 2016 1:57 PM

It's been 140 days since Merrick Garland was nominated to the Supreme Court, making his the longest pending Supreme Court nomination in history. But you didn't hear much about this milestone from the White House. And if you tuned into the Democratic National Convention last week, you probably didn't hear much about Merrick Garland at all. Indeed, when Hillary Clinton accepted her party's nomination, she barely mentioned the Supreme Court and never once uttered Garland's name.

Which raises the question: have the Democrats given up on seeing Garland appointed to the Supreme Court?

Option 1: The Waiting Game

Of course, no one has officially thrown in the towel on Garland. The White House and Senate Democrats regularly repeat talking points about the Senate needing to "do their job," for example.

But the DNC made one thing clear: the Democratic Party's energies are barely focused on the Supreme Court, or Merrick Garland. Hillary mentioned the Court only once, and Garland never. President Obama neglected to speak of either during his speech to the convention.

And it makes sense. With the election in full swing, Democrats would rather expend their political energies fighting Trump, ensuring that a Democratic administration can not only replace Justice Scalia, but whichever justices might leave the Court in the near future. That strategy is focused on winning the election, then getting Merrick Garland through the Senate after November. Should the party take this path, the Garland fight is more or less over for the coming months.

Option 2: Supreme Court Chicken

But there is an alternative. At least one Court watcher thinks that Democrats can get Garland through the Senate before the elections, by threatening to withdraw his nomination and allow Hillary to nominate her own justice. On his Forma Legalis blog, Texas appellate lawyer Jason P. Steed hypothesizes that the threat of a withdrawn Garland nomination could "make Republicans nervous enough to go ahead and confirm him," should it look like Clinton has the presidency locked down.

After all, Garland is a respected moderate who most Republicans could live with. That has to be better than whatever Wiccan socialist that Republican activists fear Hillary will nominate, right? Under this theory, giving up is exactly what the Democrats need to do to get Garland in.

Do we think it's likely? Nope, no way. But it's an interesting thought. After all, stranger things have happened.

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