When he was nominated in the spring, just after the unexpected death of longtime conservative icon, Justice Antonin Scalia, Garland was given the royal judicial treatment: Democratic aligned groups anointed him with millions of dollars of positive ads in Washington and in key battleground states, while conservative groups spent their own millions portraying him as an anti-gun tyrant.
Late last month, just before the Senate gaveled out of session until just after the election, Democrats mustered one last effort to pressure Republican leaders to take Garland up. But parading Garland around the Capitol for a second round of talks with Democratic leaders didn’t quite have the desired effect.
That’s in part because Republicans weren’t aware Garland was even at the Capitol.
“No, I don’t think I did,” Sen. Jeff Flake (R-Ariz.) replied when asked by The Daily Beast if he knew Garland was recently at the Capitol.
And he’s one of the few GOP allies Garland has in today’s bitterly partisan Senate.
Flake believes his party miscalculated on Garland from the evening Scalia died and Senate Majority Leader Mitch McConnell shut the door on confirming anyone—from a Republican ally to a moderate like Garland—that President Obama put forward to fill the vacancy.
“Our position shouldn’t be that the next president ought to decide. Nobody really believes that, because if this were the last year of a Republican presidency nobody would say that,” Flake said with a chuckle. “Our position ought to be to confirm the most conservative justice to replace Scalia—to maintain the balance on the Court. That ought to be the principle, and that would allow for us to go with Garland if the alternative is somebody more liberal.”
But that’s not the principle espoused by Republican leaders. The new rule—one could say, the McConnell Rule—is that no (Democratic) president is able to fill a vacancy on the Supreme Court in their final year in office.
“It’s never [been] about Garland, it’s always been about the principle,” Senate Judiciary Chairman Chuck Grassley (R-Iowa) told The Daily Beast. Months ago, when Grassley teamed up with McConnell to block Garland, Democrats felt the wind at their backs and fielded a candidate to take on the six term senator.
They found just the judge to take him on: Patty Judge. Initially Judge—a farmer and former state senator—looked promising as her campaign was fueled by outside money blasting Grassley for rudely obstructing Garland.
But as the summer months rolled on and Republicans made clear that Garland was a non-starter ahead of November, Judge’s campaign never took root and Grassley looks to be coasting to a seventh term.
Still, Democrats aren’t giving up and think they have a winning issue, even if that meant parading around a Supreme Court nominee who the press corps, Republicans and even his supporters have largely given up on.
“They should understand that their candidates are being hurt by not having a vote on Merrick Garland,” Senate Minority Leader Harry Reid told reporters during a recent press conference. “This is untoward and the Supreme Court has been hamstrung as a result of them wanting Donald Trump to appoint the next Supreme Court justice.”
But the McConnell Rule is curious, because it seems to only apply to the High Court. Republicans have been holding hearings to fill the more than twenty vacancies in federal district courts.
Just two weeks ago, the Judiciary Committee held a hearing on five Texas judges. They were tapped by Obama to fill half of the vacancies in the sprawling red state. The state’s Republican senators are advocating their speedy approval by the full Senate.
“We’ll try to make the case that that should happen in the lame duck session,” Sen. John Cornyn (R-Texas) told The Daily Beast. “We’d like to do it now, but there’s probably not enough time to get it done.”
While the Texans are pushing their home state nominees, they’re opposed to holding hearings on Garland or anyone else the president might have picked to fill the vacancy on the Supreme Court.
“Mitch McConnell and Chuck Grassley have rightly held the line,” Sen. Ted Cruz (R-Texas) told The Daily Beast. He says there’s no comparing district court judges and the ninth seat on the highest court in the land, in part because the nominating process is drastically different.
“We have a federal judiciary advisory committee that consists of respected attorney’s from across the state—geographically diverse, politically diverse, bipartisan—that interviews potential judicial candidates and ensures that nominees have the qualifications and experience and temperament to do the important jobs for which they’re being considered, and each of these five nominees made it through this vigorous process,” Cruz said.
But isn’t it hypocritical for Republicans to tee up their favorite son judges to fill local benches while keeping a seat on the Supreme Court empty?
“Of course it is,” Sen. Dick Durbin told The Daily Beast. “Here it is, the Supreme Court of the United States, which is already having problems because of a four to four tie, they won’t fill that vacancy and now they’re talking about other federal court judges?”
“I’ll take what we can get in terms of filling these spots on the bench, because a third of the vacant seats are emergencies that should be filled,” Durbin said. “But it’s not fair to Merrick Garland, and it’s totally inconsistent with the history of the Senate.”
There’s a chance, slim though it may be, that McConnell could relent on his own rule and take Garland up in the lame duck session of Congress, but so far he’s rejected that idea. That could change if he’s facing a Clinton presidency—or even a Trump presidency - or if after the election he loses control of the Senate to Democrats.
While the empty Court seat is an issue in the presidential contest, Garland isn’t a household name, so he’s not likely to become a campaign issue. That won’t stop Democrats from parading him about, even if his slow walks of shame through the hallowed Capitol grounds go largely unnoticed.