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Is There Any Hope for Merrick Garland?

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By Casey C. Sullivan, Esq. on October 21, 2016 11:14 AM

Two hundred and nineteen days ago, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to the Supreme Court. Since then, well, you know what's happened: not much. The Senate has steadfastly refused to consider Garland's nomination, on the grounds that the next president should decide who replaces the late Justice Antonin Scalia.

As the days tick by and the election approaches, the odds of Garland getting to the Supreme Court grow increasingly slim. Does his still have any chance left?

Little Success in the Senate

There has been a continued push to have the Senate consider Garland's nomination, even if that push has been unable to move Senator Mitch "Stonewall" McConnell, who announced his opposition to a new, Obama-nominated Supreme Court justice just hours after Scalia's death became public.

That's despite condemnation from the president, who has described the Senate's refusal to act as an "unprecedented level of obstruction," from the press, with more than 300 editorial boards having called for Senate hearings, and even from some Supreme Court justices themselves.

Just this Wednesday, Justice Sotomayor became the newest justice to publicly lament the lack of a ninth colleague, telling law students at the University of Minnesota that "It's much more difficult for us to do our job if we are not what we're intended to be -- a court of nine."

And yet, nothing. In sum, the odds are against Garland. But...

A Lame-Duck Confirmation?

There's still a chance that Garland could be nominated following the elections, during Congress's lame-duck session. Should Hillary Clinton win (a likely outcome if the elections were held today), Senate Republicans could rush to confirm Garland, betting that Garland would be a better choice than whomever Hillary might put forward. That would certainly give the lie to Senate Republican's "let the next president decide" argument, but fear of a more liberal nominee could motivate them to act.

There's another option available to Garland, too. As Elise Viebeck notes in the Washington Post, should Democrats take the Senate, Garland could be nominated in the few short days between when a new congress is convened on January 3rd and when President Obama leaves office on January 20th.

This is, perhaps a less likely outcome than a lame-duck appointment, however, for a couple reasons. First, Obama would have to renominate Garland, something he is unlikely to do should President-elect Clinton indicate she has other plans for the Court. Second, even if the Democrats win a Senate majority, they might still have to overcome a Republican filibuster and that might require changing the filibuster rules themselves.

Somewhere, Over the Rainbow...

If Garland doesn't make it to the Supreme Court during an Obama administration, could he do so under a Clinton one? (If Trump wins, of course, Garland's nomination is S.O.L.) Though Clinton has urged the Senate to act on Garland, she has not committed to nominating him herself.

During the presidential debates, she avoided mentioning Garland by name and said she would look to put forward justices with diverse backgrounds -- neither of which bode well for Garland.

But, there's still a possibility Clinton could stick with Garland's candidacy. He does seem like a decent match for her, after all: he's relatively conservative, she's a fairly centrist Democrat; he's a master of law and policy, she's a massive wonk.

Then there's the question of expediency. Senate Minority Leader Harry Reid said, in August, that he was "convinced" Hillary would stick with Garland, in part because she could get him on the bench easily. "I would think that she and all the people around her would say, 'Why do we need to rock the boat here? Let's get him confirmed quickly and move on to the next one, whenever that comes,'" he said.

But, if Hillary really wants to leave her mark on the Court, and wants to make it quickly, she could look elsewhere.

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