Merrick Garland Will Not be Confirmed in a Lame Duck Session

For reasons that really should be obvious:

But what if Hillary Clinton wins in November and brings a Senate majority on her coattails (or Trump’s anti-coattails)? Utah Sen. Orrin Hatch, a former head of the Judiciary Committee himself, has suggested that Garland could be confirmed by the lame-duck Senate after an election. And there’s a superficial logic to it — Garland is about the best nomination Republicans could reasonably expect from a Democratic president (particularly considering that Garland is 63, about a decade older than the typical contemporary nominee), so why not take what you can get?

But, on closer inspection, it’s hard to avoid the conclusion that this is not happening. Texas Sen. John Cornyn, the second-most powerful Senate Republican, popped Hatch’s trial balloon, and he will almost certainly prevail.

One daunting problem a Senate majority that theoretically wanted to confirm Garland would face is a very compressed time frame. Even relatively streamlined Supreme Court nomination processes generally require more time than a lame-duck Congress would have. Only a very focused Senate with a strong consensus in favor of confirming Garland could move a nomination that quickly through the famously sclerotic chamber.

And there’s no way the will and consensus will be there. Tea Party senators will almost certainly oppose confirmation for any nominee, period. Cornyn’s opposition in itself would probably be fatal. And not all of the likely opposition will come from the Republican side of the aisle. Democratic senators who would either prefer a more liberal nominee than Garland or who believe that president-elect Clinton is entitled to make her own selection are also likely to gum up the works. I doubt there would be a majority in favor of confirming Garland in a lame-duck Senate, and even if there was, the large minority opposed to it would almost certainly do what the Senate does best: stop that majority from acting.

And, again, this is not necessarily even irrational from a Republican standpoint. Even assuming that a Democratic Senate majority would blow up the filibuster and get a Clinton nominee confirmed, it’s probably not hugely important to most Republican senators whether Garland or someone marginally more liberal than Garland gets confirmed, and it’s certainly politically preferable for Republican senators with a wary eye on primary voters that any Democratic nominee get confirmed without Republican support.

And of course after the piece was in the can McConnell announced his opposition to a lame duck confirmation.

To put it another way, any Republican voting to confirm Garland, and hence votes to TAKE YOUR GUNS AWAY and to KILL BABIES, risks a primary challenge. On the other hand, in a lame duck confirmation there’s no political upside for the GOP; Krik, Ayotte, Grassley et al. have either survived despite the obstruction or already lost. And in return for something that’s politically all downside and no upside, what are you getting in return? A judge who’s like the one Clinton would nominate, only a little older and maybe a little worse on Fourth Amendment issues from a conservative perspective. Maybe to Orrin Hatch, who’s 81 and cares a lot about this stuff, that’s a deal worth making. But for most members of the Republican conference, if you think they’d take that tradeoff you just don’t understand how they operate. Combine that with the fact that a lot of Democrats would prefer for Clinton to name her own nominee, and a lame duck confirmation is Not Happening.