Supreme Court nominee Merrick Garland wasn’t mentioned a single time during the Democratic National Convention. Not by President Obama. Not by Hillary Clinton. Not by anyone.
1. The obvious reason that no one mentioned Judge Garland is because he is unpopular with the Left and any mention of him would have been likely to elicit raucous booing. (Consider, for example, how Leon Panetta was received.)
Senate Democratic candidates will surely continue to criticize Republicans for not moving the Garland nomination. But the fact that Obama and Clinton didn’t see fit even to mention his name won’t help their case.
2. As I’ve said repeatedly over the years, I like and respect Garland. If the Scalia vacancy ends up being filled by a Democratic president—and I very much hope that it doesn’t—Garland would be at or near the top of my list of folks to fill it.
That said, I have no real hopes that Garland would be markedly better for the Court than anyone else a Democratic president might pick. While I believe that he would be less inclined than many others to lead the charge for the invention of rights not in the Constitution and for the contraction or elimination of rights (and limits on governmental power) that are in the Constitution, I doubt that he would decline to provide a fifth vote for whatever the four other liberals would want.
3. Reporters ought to ask Hillary Clinton whether she would re-nominate Garland. I think that’s a question she would prefer not to answer. If she says yes, she will upset a lot of folks on the Left. But Garland, who was a senior official in the Department of Justice during Bill Clinton’s administration before Clinton appointed him to the D.C. Circuit in 1997, is very well connected to, and well regarded by, Hillary advisers. (As it happens, one of his new law clerks, Margaret Goodlander, is married to Hillary adviser Jake Sullivan.) So she’d also upset a lot of people if she says no.
4. Let’s consider the prospects that Judge Garland will become Justice Garland:
a. Garland’s best hope is that Hillary wins the presidency but Republicans retain control of the Senate. In this scenario, folks on the Left might reasonably fear that Hillary couldn’t get a vociferous liberal confirmed, so they’d be less likely to criticize her for re-nominating Garland.
b. By contrast, if Hillary wins the presidency and Democrats gain control of the Senate, the Left will push hard for a more liberal nominee. I think that Garland would have at best a 50/50 chance of being re-nominated.
c. Might Senate Republicans move to confirm Garland in the lame-duck session if Hillary wins? Both Senate majority leader Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley have rejected this option. The scenario in which they’re most likely to be urged to reconsider their position is one in which, in addition to a Hillary victory, Democrats win control of the new Senate. But that’s exactly the scenario in which Democrats are least likely to want to move the Garland nomination. So I don’t think it’s very promising for Garland.
d. What about the (unlikely) scenario in which Trump is elected president but Democrats win control of the Senate? In that event, there would be a very narrow window for action on the Garland nomination between the time the new Senate is seated on January 3 and the time Trump takes office on January 20. (Obama, as I understand it, would need to re-nominate Garland, as the Senate would have returned the original nomination to the White House at the end of its session.) Could Democrats race the nomination through in such a short time? And would they repeal the filibuster (which is still available against Supreme Court nominees) to make that happen—and thus deprive themselves of a tool to block Trump’s Supreme Court nominees? Garland’s prospects don’t look promising in this scenario.