Law & the Courts

Remember Merrick Garland?

President Obama announces Merrick Garland’s appointment in March. (Reuters photo: Kevin Lamarque)
The Supreme Court fight is almost entirely absent from the campaign trail.

Remember Merrick Garland? President Obama nominated him to the Supreme Court way back in March. Senate Republicans said they would not consider his nomination, contending that the late Antonin Scalia’s replacement should be selected by the next president. Many Democrats argued that the refusal to give him a confirmation vote would be a major issue in this fall’s campaigns.

So far, it hasn’t been.

No Democratic Senate candidate has run a television commercial on the issue of Garland’s nomination. No major Democratic figure mentioned his nomination during the party’s convention in Philadelphia. Neither Garland nor the Supreme Court even came up in Monday’s first presidential debate. Hillary Clinton barely mentions Garland on the campaign trail, and has indicated that she might nominate someone else if elected.

The public’s lack of interest in Garland’s nomination must come as a rude surprise to his biggest supporters, who confidently contended for most of the year that Republicans were making a terrible error and that their stance would cost them dearly at the ballot box.

“Not only are Republicans losing on this issue, they can’t even keep their own voters in line,” Paul Waldman declared in May. “I think the vast number of voters in states with vulnerable Republicans are expressing disapproval over the failure of the Senate to treat Garland fairly and my sense is this expression will only grow over the next several weeks and months,” Nan Aron, president of the Alliance for Justice, said in August. “[Senate Republicans] have this death wish, and that’s what it is. They are going to end up losing really, really big,” Senate Minority Leader Harry Reid said the same month.

Senate Republicans haven’t had to defend their treatment of Garland because Senate Democratic candidates rarely bring it up. If the issue was salient enough to move the numbers, they would do so. The absence of attacks indicates that the public is either sufficiently supportive of the GOP’s stance or doesn’t care enough to change its votes.

#related#We will know more on November 9, but so far the 2016 Senate races appear likely to be a mixed bag for Republicans. Some incumbents, such as Rob Portman in Ohio and Marco Rubio in Florida, look like increasingly safe bets for reelection. The reelection prospects for a few others, such as Richard Burr in North Carolina and Roy Blunt in Missouri, look shakier than expected. In those races, Garland’s nomination appears to be a minor factor at most. If the Republicans lose their senate majority, analysts are likely to conclude that the presidential was the dominant factor, not their refusal to consider Garland.

If Senate majority leader Mitch McConnell is the head coach “winning” the Garland fight, then his defensive coordinator has been Senate Judiciary Committee Chairman Chuck Grassley. Grassley believes the next president should make the decision on the next justice, and he’s been tasked with enforcing the Republican line in the sand. If any Democrat could gain traction on the nomination issue, it would seem to be Grassley’s challenger, Patty Judge. But Grassley has consistently led polls of their race; the most recent survey puts him ahead of Judge by 17 points.

If she doesn’t get a concession call on Election Night, she’ll be the second Judge who didn’t get what she wanted from Grassley this year.