Consider this not unlikely scenario regarding Merrick Garland, President Obama’s nominee for the vacant seat on the Supreme Court.
- Donald Trump wins the Republicans nomination for President.
- Trump gets defeated by Hillary Clinton in November. Nearly all polls indicate that Trump would lose such a head-to-head battle, and by a wide margin.
- Republicans may also lose control of the Senate in the process. More Republicans face strong challenges than Democrats for Senate seats this fall. Republican seats may turn Democrat in in several states, including Illinois, North Carolina, New Hampshire, Ohio and Wisconsin. In addition, Republicans may lose Marco Rubio’s former seat in Florida.
- Republicans confirm Garland in a lame duck session.
Obama picked Garland, a moderate as Democrats go, to make political hay over the Republican’s refusal to consider him or any other Obama nominee for the Supreme Court vacancy.
If Republicans do not confirm Garland in the wake of a Trump defeat, President Hillary Clinton would certainly pick a more liberal judge in his place.
Some conservatives argue that confirmation hearings should begin in any case. George Will asks the entirely reasonable question, “What makes you think that Trump would name a better justice?” No one really knows what Trump would do if he becomes President, including Trump.
Republicans are already laying the groundwork for a reversal of their refusal to consider the nomination. Senate Majority Leader Mitch McConnell (R-KY) is arguing that the Senate should not confirm a Supreme Court nominee until the people have spoken about the direction the country should take. Senator Mark Kirk (R-Illinois), facing an uphill battle to hold onto his office, has already called on Republicans to “man up” and consider the nomination.
In November, the people will have spoken. It would be a short step to confirm Garland soon afterward. Obama has stated that he will not withdraw Garland’s name from consideration no matter who wins in November. And let the Democrats argue against confirming Obama’s pick after they have harangued the Republicans to act for eight months.
Perhaps, as the election nears and Trump’s defeat is all but assured, the Senate majority will reverse its position and begin hearings on Obama’s nominee to ease confirmation process during the lame duck session.
Would anyone really be surprised?
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