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Was Merrick Garland’s name ever mentioned during the DNC?

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This guy says it wasn’t, and he has a theory as to why:

[R]ight now the conventional wisdom is that Republicans are blocking Garland’s nomination on the outside chance they can win the presidency and fill Scalia’s seat themselves; and if Clinton wins, they’ll just confirm Garland after the election, during the lame duck session. This plan will work, even if the Republicans lose the Senate, because they’ll still hold the majority until their replacements take office in January. The only way this doesn’t work is if Garland’s nomination is withdrawn. So what if the Garland nomination is withdrawn?

Look, I believe Obama nominated Garland because Garland is who he actually wants on the Court. But the Republican pitch on filling Scalia’s seat is “the voters should decide.” I’ve already explained why that doesn’t make any sense—the voters decided who should fill Supreme Court vacancies when they elected Obama. But a pitch that’s good for the goose is good for the gander. The GOP has handed Obama an excuse to withdraw Garland’s nomination the morning after the election. (Obama: “Guys, guys, you wanted to let the voters decide, and the voters have decided they want Hillary Clinton to fill this seat.”)

Do I think Obama would actually withdraw Garland’s nomination? I didn’t a week ago. But that was before we witnessed an entire week of the DNC, packed with speeches about Democratic goals and priorities—with plenty of talk about Supreme Court decisions that need overturning and plenty of promises to nominate justices who will overturn them—but not a single mention of confirming Merrick Garland.

My theory: If we get deep into August and the polls are showing not only a strong lead for Clinton but also promising leads in enough of those senate races, it will take only credible whispers of withdrawing Garland’s nomination to make the Republicans nervous enough to go ahead and confirm him before the election. And how do you create a credible threat of withdrawal? By taking the stage before millions of viewers for a week to talk about goals and priorities, and the importance of the Supreme Court, without mentioning Garland. There was an effort to rally Democratic voters behind the importance of appointing the right people to the Supreme Court—but no effort to rally Democratic voters behind Garland. Why? Because absenting Garland from the DNC was a signal. The Party didn’t commit itself to Garland. Clinton didn’t commit herself to Garland. Even Obama didn’t push for Garland. The signal: after this week, the possibility of withdrawing Garland on November 9 is real.

This is superficially plausible — and it’s certainly noteworthy that Garland wasn’t mentioned, assuming he wasn’t — but I can’t see the GOP folding on Garland right before the election even if the polls look dismal for them. That sort of show of weakness would just enrage the base further, assuming that particular dial won’t already be cranked up to 11 by then.

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  • jamesepowell

    Totally agree. I have always believed that Garland was nominated to illustrate the Republicans’ irrational obstruction and, if they decide to let him go through, not a bad choice. The nomination succeeded and will continue to succeed on that basis.

    I do not expect Obama to withdraw his name if Clinton wins. i am almost certain that Garland will withdraw himself.

    • Bill in Section 147

      I was going to go with Garland withdrawing himself too. If the Democrats win the Senate and the Presidency then I would prefer a more liberal justice. I definitely want a Clinton Administration to be more like the last year of Obama’s with less fucks to give than the ‘Let’s get along and fix things.’ Obama from the first couple of years.

      The F. U. side of me wants Judge Gonzalo Curiel, and when he’s confirmed I want his chair in the Chamber to be gold-leaf, classy and YOOOGE! (He is too consrvative… but F. U.)

      • Manny Kant

        I’m still pleased by my no longer operative idea from the spring that Obama should have appointed Trump’s sister just to troll the Republican Party.

        • ThrottleJockey

          +1,000

    • ThrottleJockey

      Why would the man withdraw himself. Does he lack personal ambition. This isn’t akin to resigning because you don’t want to be fired.

      • jamesepowell

        I am suggesting would do it because the president will ask him to do it rather than force the president to withdraw his name.

        • AMK

          I think Obama actually likes Garland. The political angles with him work well, but even if this was a normal appointment process he would have chosen him or someone like him. The black transgender General Counsel of Save the Whales would have been out of luck in any case.

          “Asking him” to withdraw his name would not fool anyone; there would be a 5,000 word Politico “inside story” about Obama throwing Garland overboard within three days. If the narrative is supposed to be “Republicans are hypocrites who play irresponsible politics with the court,” then having Obama flip-flop on the guy he endorsed a few months ago just so he could twist the knife in the GOP makes no sense.

          • ThrottleJockey

            Yeah and Obama said that he wouldn’t withdraw the nomination. Since I believe he’s a man of integrity and not cynical, I’m inclined to think he’s sticking with Garland win, lose or draw. It might be good politics to withdraw the nomination if Hill wins, but its shitty at a personal level. A true Chicagoan would do it in a heartbeat (cough, Rahm, cough) but Obama was born in Hawaii.

            • AMK

              The TV cameras actually caught a glimpse of Rahm on the convention floor last night. I’m surprised they let him show up without a disguise.

              • brewmn

                I commented that he seemed very happy not to be in Chicago.

  • If Garland withdrew his name from consideration he would effectively be setting up further Senate obstruction, since there is no reason to believe that a Republican Senate would go along with an HRC appointment. A Democratic Senate would be another story, but that would mean going into the next SC term with a short bench.

    • BiloSagdiyev

      Yes. I predict that Garland is withdrawn/withdraws and then HRC nominates a candidate, then the GOP will spin on a dime and say, “Hey, that Garland guy, we kinda liked him! BUT LOOK AT WHAT FEMINAZI BOSSYPANTS TYRANT HILLARY IS TRYING TO RAM* DOWN OUT THROAT!”

      * At some point, the yahoos are going to start talking about strap-ons, mark my word. How they found out about that, I do not know, for they are all good, decent people of the heartland, who work hard with their hands, unlike you.

  • SNF

    The Democratic Caucus has 46 seats. You need 60 votes to break a fillibuster.

    In order to confirm Garland, if every non-Republican supports him, they would still need 14 Republicans to support an Obama nominee.

    Are that many Republicans willing to go on record supporting an Obama nominee who will let the Court get a liberal majority?

    I don’t think the Senate can approve Garland, even if McConnell wanted to let him through.

    • Thom

      They don’t have to support him (or another nominee), they just have to agree to let it go to a vote. They can do that while still claiming that he doesn’t meet their standards. What they will do, I have no idea.

      • cleter

        I think after the election they’ll have a vote that will fail to confirm him, and that’ll be the end of it.

    • Paul Campos

      I think the filibuster for SCOTUS appointments will disappear as soon as one party holds the presidency and 50+ seats in the Senate and there’s a current SCOTUS vacancy. In other words, it could well be gone by next winter.

      • Manny Kant

        Everyone seems to be assuming this.

      • SNF

        Indeed. Which is what will probably happen if HRC wins the presidency and if Democrats win the Senate.

        But Republicans won’t eliminate the fillibuster with 50 votes to help Obama’s nominee.

      • JB2

        I would hope so. Just an outrageous display of bad faith by McConnell and Grassley. I want the SC stacked with three or four new 38 year-old super-progressives by this time next year.

    • delazeur

      Once the election is over you might get close to 14 just from people who are retiring or planning on it, people who lost reelection, people who think their state will forget over the 4-6 years before their next election, and people in purple state who want to burnish their bipartisan cred.

      • so-in-so

        And lose their seat on the RW grift train? You have more faith in their principles than, well, than they have given you to have.

        • Anna in PDX

          Would not necessarily hurt their position in the grift train. They are more likely to go to a lobbying firm than to a RW think tank, for one thing the pay is better. Lobbying firms don’t care about whether you’ve been sufficiently pure to satisfy the base.

    • JustRuss

      I agree with you and Campos. The Dems want the seat filled, because there’s work to be done and I’m sure Obama would like the chance to make the appointment. This is their way of putting the Republicans on notice that it’s in their interest to fill that seat now.

      But it probably won’t matter. Even though the sane Republicans know what’s going on, confirming Obama’s pick will be electoral suicide with their base, especially after they’ve made such a big deal about not confirming. On the other hand, the senators who aren’t up for re-election this year might be willing to take the hit and hope that it won’t be a big deal by the time their term expires.

      Will be interesting to see how this develops. And knowing those bastards are facing this dilemma gives me a nice warm feeling inside.

      • efgoldman

        Even though the sane Republicans know what’s going on

        What “sane” Republiklowns? Even the ones who aren’t raving loon nutjobs vote with the leadership every. single. time. For now and at least the next couple of cycles, fighting a primary with someone even nuttier is their worst fear.

    • feebog

      Or, you do what they did with other judicial appointments and toss the filibuster. I think it would be a perfect opportunity for a small Democratic majority to do just that.

      • SNF

        Yeah, but that can only happen after the new Congress comes in. The Senate Republicans certainly won’t eliminate it to help Garland.

    • Thrax

      In that scenario, if nothing else, we’ll see exactly how much clout McConnell has with the Senate GOP. You can bet McConnell will side with the realists who will take Garland over a Clinton appointee, to be confirmed by a Democratic Senate. Can McConnell get 13 others to go along? I could see Graham, McCain, Corker, Kirk, Ayotte, Portman, and Collins doing it; I can’t find another six who will.

      • piratedan

        Perhaps Flake as well, he’s actually shown moments of sanity in confronting Trump the last two months…

      • Scott Lemieux

        You can bet McConnell will side with the realists who will take Garland over a Clinton appointee, to be confirmed by a Democratic Senate.

        Uh, I’ll certainly take that bet. Everything about McConnell over the last 8 years suggests that he will do no such thing.

  • gmack

    Agreed entirely. I was also surprised to hear no mention of Garland, and I don’t know why the Democrats decided not to emphasize it. My supposition was Republican obstruction of the nominee isn’t an issue most voters care enough about. Sure, plenty of voters care about the SCOTUS, but those voters have already picked their side. The number of voters who (a) care about Republican obstruction, but (b) aren’t already Democratic voters is probably pretty small.

    Anyway, I suppose that the post that the OP quotes offers a plausible counter-explanation, but as Paul points out, I don’t see it as very likely. If the Republicans are behind in the polls, confirming Garland right before the election would almost certain make their electoral prospects worse, in that it would simply suppress conservative turnout.

    • polyorchnid octopunch

      Of course, there’s another possibility that ties in with this. Given the clear distaste verging towards loathing of a lot of the Republican establishment to Trump, plus his latest mouth noises about NATO and Putin, they may decide to do that to help torpedo him… or at least enough of the Senators that are from close states may do that, not least in an attempt to save their own electoral prospects.

      • twbb

        I think the NATO thing might have finally given the press corps a slap in the face. Suddenly those Trump-based ratings might not seem worth the Armageddon.

    • tomscud

      The main rhetorical strategy of the convention was to paint Trump personally as a horrible candidate. He hasn’t had much if anything to do with Garland’s non-hearings, so focusing on it would have been off-message.

    • dn

      It might just be a matter of framing.

      If the success of Trump depends in part on the perception of “Washington” gridlock, the perception that “both sides do it”, then you don’t call attention to an ongoing case of gridlock in which both parties are highly invested. Gives too much of a whiff of grubby “politics as usual”; nothing very inspiring about it.

      Also, you don’t confuse your targets or your messaging. The goal of the convention has been to attack the Republicans not as the party of McConnell and Ryan but as the party of Trump. Trump’s unpatriotism, his irreligion, his racism and sexism, his contempt for workers, his general immorality and instability, is the millstone they want to hang around the necks of the mainstream GOP, not the other way around. Trump gives them more than enough material for this if they just focus on the low-hanging fruit without needing any inside baseball stuff like Garland.

      EDIT: and tomscud is ahead of me.

  • delazeur

    IMO, this sounds a little too much like 4D chess (maybe not 11D chess, but still). Superficially plausible but not obviously probable.

    [R]ight now the conventional wisdom is that Republicans are blocking Garland’s nomination on the outside chance they can win the presidency and fill Scalia’s seat themselves; and if Clinton wins, they’ll just confirm Garland after the election, during the lame duck session. This plan will work, even if the Republicans lose the Senate, because they’ll still hold the majority until their replacements take office in January. The only way this doesn’t work is if Garland’s nomination is withdrawn.

    People keep treating this like the process is nomination -> confirmation -> swearing in, but I am inclined to believe that’s just a norm and that the actual process is nomination -> advice & consent -> appointment -> swearing in. I am not 100% sure though. Is there an action the president has to take after Senate approval, like signing some sort of document? If so, Obama could simply skip that step.

    • Crusty

      I think you are correct and Obama doesn’t need to appoint Garland even if he is “confirmed” by the Senate. He could say I changed my mind, meet Laverne Cox. I think she’d make a great justice.

    • Katya

      Yes, the president formally appoints the justice after Senate approval. But I can’t see the value of not signing the paper. If Garland were to be confirmed, why wouldn’t Obama appoint him? It would be insanity to throw away that confirmation in a gamble that the Dems would get someone “better” during Hillary’s presidency. First of all, there’s likely to be at least one more vacancy during her tenure. And second, you never really know what’s going to happen, even if the Dems take the Senate. A bird in the hand and all that. Third, the Court needs a Justice. It would be smarter to take Garland, and have Clinton use the Senate majority to quickly fill all the lower court vacancies, starting with the circuit courts.

      • TM1

        Third, the Court needs a Justice.

        This is overlooked IMHO. There’s value in being the party of good government.

      • Manny Kant

        Garland is such an immense improvement on Scalia that it’s hard for me to get too worked up about prospect of even more liberal replacement.

        • deptfordx

          I just can’t see Obama getting up to such shenanigans. Seems the sort of play that maybe Newt would think was clever, but would be totally out of character for someone like Obama.

    • Snarki, child of Loki

      “IMO, this sounds a little too much like 4D chess (maybe not 11D chess, but still).”

      Agreed. It probably started as 11D chess, but 7 of the dimensions ‘rolled up’ and were compactified.

      • Roll up
        They’ve got everything you need
        Roll up for the Mystery Tour
        Roll up
        Satisfaction guaranteed
        Roll up for the Mystery Tour

      • (((Hogan)))

        ‘The box exists in ten or possibly eleven dimensions. Practically anything may be possible.’

        ‘Why only eleven dimensions?’

        ‘We don’t know,’ said Ponder. ‘It might be simply that more would be silly.’

      • The patent Trump Compactor rolls up seven YUUGE dimensions while on fire!

  • piratedan

    in related news… the 4th circuit just struck down the NC Voter ID law

    • Captain Oblivious

      From the decision:

      Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist.

      Zing!

      • BiloSagdiyev

        Oh, I’m pretty sure that to NC Republicans, black people voting is a problem that exists.

        I am slowly reading “Democracy Betrayed”, a collection of academic essays about the white supremacist coup in Wilmington, NC, around the turn of the century. (You know, the real turn of the century, the one grown folks think of.). The parallels between then and now are just too depressing.

  • NewishLawyer

    The Supreme Court seems to be the elephant in the room that neither party is mentioning very much. Trump gave a shout out to Scalia but that is about it.

    • Katya

      I’d disagree. Numerous speakers at the DNC, including Sanders and, IIRC, Cecile Richards, explicitly mentioned SC nominations as a reason to vote for Hillary.

      • Also Trump brings it up immediately after every one of his gaffes. Like clockwork, when he says or does something that seems like it might lose him the support of Republican elites, at the next available opportunity he says those two words, “supreme court,” and they fall right back in line.

        • rea

          Pence just yesterday promised that if Trump is elected, Roe would be overturned.

  • Gee Suss

    The Republicans lose precisely zero by blocking Garland. They’ve paid no price, they will continue to pay no price, and it’s in their interest to block every nominee for as long as possible.

    I really think the only thing that will break the impasse will be someone from the right side of the Supreme Court speaking up and letting them know they are damaging the court.

    • Steve LaBonne

      Why would that move them? Because they care about good government? Haha.

    • (((Hogan)))

      Roberts is a RINO, Kennedy might as well be Thurgood Marshall, and I don’t see Alito or Thomas stepping up.

      • Gee Suss

        “Right side” is doing a lot of work. I would say if Alito said something it would get enough republicans over the line.

        • (((Hogan)))

          And part of my point is he won’t do it. Roberts is a movement conservative who cares some about the institution; Alito is just a movement conservative.

    • efgoldman

      I really think the only thing that will break the impasse will be someone from the right side of the Supreme Court speaking up

      Didn’t Roberts do that in a general way, without specific reference to Garland?

  • Brad Nailer

    In the photo with Biden, Garland’s got an expression on his face that reminds me of the classic line from an old Law & Order episode: “Am I the dog or the pony?”

    • Scott Lemieux

      PERSONA NON GRATA, Jamie!

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  • Lit3Bolt

    Remember the reason Obama didn’t nominate someone else for the vacant seat was to avoid Borking that candidate from the SCOTUS forevermore. Garland was a “safe” pick in more ways than one.

    Maybe they thought a 4-4 court would stress out everyone else on the court, or maybe they’re hoping to make it THE down ballot issue.

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