04 Apr

How long can Senate Republicans pretend that Merrick Garland doesn’t exist?

When the U.S. Senate returns from its two-week recess Monday, its first order of business will be to keep trying to ignore an 800-pound gorilla.

Or at least a 150-pound Supreme Court nominee.

The Republican Senate leadership is standing firm in its insistence on ignoring President Obama’s nomination of Merrick Garland to the high court, on the grounds that when Obama named Garland, there were only 10 months left in Obama’s term. The GOP leaders have urged their senators not even to speak to Garland, to pretend he doesn’t exist, and possibly to hold their hands over their ears and just repeat “La, la, la” should he approach.

Oregon’s Democratic senators, rolling through Southern Oregon last week, pronounced themselves perplexed.

“The Constitution did not foresee a Senate filled with ostriches,” said Ron Wyden. “The policy ‘Put your head in the sand’ is nowhere in the Constitution.

“All over the state, people come up to me and say, ‘Are you folks going to vote?’”

Polling suggest people are urging that in other places, too, but if you can ignore a nomination, you can also ignore polls.

“At this point, this is really a dereliction of duty by the Republicans,” said Jeff Merkley. “They know it, and they’re embarrassed by it.”

Of course, these days, the GOP embarrassment threshold keeps getting higher.

Over the past two weeks of this recess, pressure was supposed to be building on Republican senators, and there have been some signs of it. Jerry Moran of Kansas and Susan Collins of Maine said publicly that the Senate should proceed with the nomination, and Mark Kirk of Illinois, perhaps the most endangered GOP incumbent this November, actually met with Garland – who is, after all, from Illinois.

“It’s significant that Mark Kirk met with Garland yesterday,” judged Merkley, but “I don’t think you can call it a major fissure yet.”

Last week also showed another effect of the empty seat on the Supreme Court, as the justices delivered rulings on two major cases with 4-4 ties. With the Republican claim that filling the seat should wait on the next president, and the time required for that nomination to move through the process, this would be the situation for quite a while.

Points out Wyden, “We shouldn’t have to wait until spring 2017 to have a full court.”

And that’s assuming nobody else leaves the court over the next year. Given the uncertain proposition that is life, the next president could start out with a list.

Still, the Republican Senate leaders are holding firm. Orrin Hatch of Utah wrote an op-ed for The New York Times declaring he was standing for eternal principle, although most of the piece was about how much he disliked President Obama. Judiciary Committee Chairman Charles Grassley spent the recess promising Iowa audiences that he wouldn’t hold hearings on Garland, although he warned that Democrats might try to hold a vote forcing the nomination out of his committee.

As the Senate returns this week, Wyden agrees that that kind of vote might be technically possible – although even if Democrats somehow attracted enough Republicans for a majority to get the nomination out of committee, it would still take a more distant 60 votes to force a confirmation vote – but says Democrats haven’t actually discussed it. Merkley notes there are other strategies Democratic senators could use to try to force the Senate to take up Garland, such as refusing the unanimous consent needed to proceed on most actions, or filibustering to paralyze the Senate, but he doesn’t sound enthusiastic.

“I think in general, people in the Democratic caucus think there’s been enough paralysis already,” he said. “We’ll continue just trying to win the hearts and minds of our colleagues.”

This also seems to be the approach of the Obama administration, hoping that each Republican senator’s willingness to have a polite conversation with Garland will somehow add up to an eventual willingness to hold an actual Senate vote on confirming him. It may not be entirely promising, and given the rigid positions of the Senate leadership, a more likely outcome might be that the paralysis consuming the Senate will spread across the street to the Supreme Court.

But who knows.

“I don’t think anybody can predict,” said Wyden. “This is the year when everything you predicted wouldn’t happen, happened, and everything you predicted would happen, didn’t.”

But it really doesn’t seem that the Senate can spend the entire rest of the year ignoring the 800-pound gorilla of an empty Supreme Court seat and a qualified Supreme Court nominee.

After all, it’s also got an entire federal budget to neglect.

NOTE: This column appeared in The Sunday Oregonian, 4/3/16.

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