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As Donald Trump Sinks, Republicans May Rethink Merrick Garland

Vulnerable GOP senators could distance themselves from their nominee by voting to confirm the Supreme Court nominee—before President Hillary picks a more liberal jurist.

08.23.16 5:00 AM ET

When the Senate reconvenes on Sept. 6, there may be a new faction supporting the confirmation of Judge Merrick Garland to the Supreme Court: Republicans.

As the slow-motion implosion of Donald Trump’s candidacy continues, the calculus is shifting for moderate Republicans in particular, many of whom are fighting for their political lives. There are at least three reasons why this shift is taking place.

Hillary’s Pick

First, the main reason Garland’s nomination stalled in the first place is, obviously, that Senate Republicans thought they could get a better deal under a Republican president. Forget that nonsense about “let the people decide”—the people decided back in 2012, when they elected President Obama to a second full term. And never before have confirmation hearings (Judge Garland’s being but the tip of an enormous judicial iceberg) been halted as early as the April before an election. No, this was transparently about getting another conservative on the Court.

Now, not only does that look increasingly unlikely, but several progressive organizations have strongly hinted that President Hillary Clinton should nominate someone more liberal than Judge Garland, who is widely perceived to be a moderate. (Like all other White House nominations, Garland’s will expire on Jan. 20 when the next president takes office.)

Moreover, with the Democrats more and more likely to control the Senate—and with the anti-filibuster “nuclear option” having already been exercised—it’s entirely possible that President Hillary Clinton’s nominee could be far more liberal than Garland, and could be confirmed as early as February.

This has always been the case for a lame-duck confirmation to be held in November. After the election, Republicans can cut their losses, and meanwhile Majority Leader McConnell can save face, saying “the people have spoken.” But there are reasons why they may want to act sooner.

Donald Who?

As Trump’s numbers tank, it’s no secret that Congressional Republicans are trying to jump ship. While only a few have openly endorsed Hillary Clinton, the mainstream GOP leadership has largely sat out the presidential race, and there have been calls for the Republican party apparatus to shift its resources to saving its majorities in the House and Senate.

With Trump having strongly endorsed the anti-Garland blockade, confirming Garland could be a way for Senate Republicans to distance themselves from him. After all, it would be much easier for vulnerable Republican senators to say “I’m not Trump” if they actually did something that Trump opposes.

And not just Trump. If McConnell continues to be the poster child for the stonewall, it wouldn’t hurt for some senators to break from him, too. Recent polling shows McConnell to be one of the least popular politicians in the country, with a net 51 percent disapproval rating (i.e., 15 percent approve, 66 percent disapprove). Clinton’s, by comparison, is net 15 percent disapproval.

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Of course, abandoning the hard line and compromising with Democrats will outrage the base, and the Breitbart-led Trump campaign. But it’s not the base that vulnerable senators need to worry about. It’s moderate Republicans—precisely the people whom Trump has alienated, castigated, and driven into the arms of Clinton or Johnson-Weld. These voters may well stay home on Election Day, potentially costing the seats of vulnerable senators like John McCain, Kelly Ayotte, Rob Portman, Ron Johnson, and Pat Toomey.

Even Iowa’s Charles Grassley, chairman of the Senate Judiciary Committee and the man who could make hearings happen in an instant, is surprisingly vulnerable this year. He’s come under heat for refusing to give a qualified candidate a hearing—and with no practical benefit remaining, why incur the cost of being labeled an obstructionist?

Obviously, the Supreme Court is not at the top of anyone’s electoral agenda this year—though both Trump and Clinton have spoken about it more than candidates usually do. But could it be enough to motivate some percentage of moderates to go the polls and support their incumbent Republican senators? 

Sure. Polling data suggests that voters do care about the issue. As we reported last month, in 10 states with vulnerable GOP incumbents, 41 percent of voters said they were less likely to vote for senators who opposed giving Garland a hearing, with about 24 percent more likely to do so.

And remember, we’re only talking about swing voters in a handful of Senate races. If there’s really no chance that Trump will be president, confirmation hearings are at least worth a shot. Especially considering the alternative.

Throw the Bastards Out!

As much as voters dislike Trump, they dislike Congress even more. The 114th Congress is widely perceived to have been ineffective, hamstrung by gridlock and partisan bickering. For heaven’s sake, it can’t even pass emergency funding for Zika-infected pregnant women. (Republicans refused to support the funding unless Planned Parenthood was excluded from receiving it.)

Democrats smell blood. Even if voters just “vote the bastards out,” that will hurt incumbents—and there are more incumbent Republicans than Democrats. But to the extent that voters identify Congress’s inaction with Republicans specifically, the result could be a boon for Dems.

That’s why Senate Minority Leader Harry Reid is betting that if he can lead some shenanigans in the Senate that call attention to the Garland stonewall, that will hurt Republicans more than Democrats.

What might that look like? Democrats could filibuster defense bills, budget bills, or, yes, Zika funding, linking their passage to a confirmation hearing (or vote) for Garland. President Obama could even order the Senate into session right up until Election Day. Of course, that’s precisely the kind of partisan bickering that voters are complaining about, but the gamble is that voters will care more about the underlying Republican obstructionism than the Democrats’ obstructionist tactics.

If Congress can’t even pass funding to save infants from microcephaly, voters are going to be pissed. And fairly or not, they’re going to blame their vulnerable incumbents.

For these reasons—Clinton’s alternative, Trump’s unpopularity, and voters’ rage at gridlock—the ratio of benefits to costs is shifting for Republican senators. Who knows, they might just do their jobs.